Document Exchange (DX) address is:Office of the Public GuardianDX 744240Birmingham 79 I feel privileged to be the public guardian when I consider that my office supports and protects some of the most vulnerable people in our society – as well as giving everyone the chance to think about a time in the future when they may no longer be able to make decisions for themselves. The statistics relating to this area of work can be staggering – it’s estimated that around two million people in England and Wales lack capacity to make decisions, and are looked after by around six million carers – family members and professionals. In the UK 700,000 people have dementia (15,000 of these people are under 65) – and by 2021 this figure is expected to reach one million. That means that almost every one of us will be affected by issues of mental capacity in some way – as a sufferer, family member, a carer, a friend or through our professional lives. The figures also tell that we can expect demand for our services to increase over the years to come, especially as we have a duty to let people know about their options to plan ahead. Against this backdrop of increasing rates and demand, it is vital that Office of the Public Guardian (OPG) services be fit for purpose and truly customer-focused. I know that, in the past year, customers have experienced real problems when dealing with us. We are now processing applications much more effectively. But I also know that we need to do more to continue to restore confidence in our services. We have already made a number of important changes in response to feedback, and from our own experiences, since the implementation of the Mental Capacity Act 2005 (MCA). For example, where appropriate, we now accept newly executed part Bs and Cs for lasting powers of attorney (LPAs) where errors have been identified. This means that the donor does not have to make a completely new application or pay a further registration fee. We also regularly update our website with useful information regarding lasting and enduring powers of attorney. Similarly, the Court of Protection is piloting a dedicated section within our contact centre dealing with enquiries, including those relating to applications. As part of a government commitment, we are planning a longer-term piece of work to help to review the impact of the MCA, the associated code of practice, the OPG and the court since their launch in October 2007. We will be working closely with both the Department of Health and the Welsh Assembly Government. This evaluation will take around 18 months. The results will tell us what difference the act is really making in practice and where improvements might be possible where it is working less effectively than planned. The consultation paper ‘Reviewing the Mental Capacity Act 2005: forms, supervision, and fees’, which closed on 15 January 2009, asked for comments on the revised draft LPA forms, and the new tier of supervision for deputies supervised by the public guardian and the fees charged by the OPG and the court. A total of 76 written responses were received from a range of stakeholders, professional bodies, interested parties and members of the public – the majority of responses came from the legal profession or organisations representing them. The government response was published on 11 March. Responses have been analysed and results have guided the conclusions and next steps. Supervision of deputiesMost respondents to the consultation, who offered an opinion about the supervision of deputies, agreed that type 2A supervision would provide flexible protection, support and a robust approach. A number of suggestions were received that were outside the scope of the consultation, such as having more visits and increased checking of accounts. Where these further ideas would support effective and proportionate risk management, as well as an efficient and cost-effective service to customers, they will be incorporated into future business improvement activity. New supervision level 2A was introduced on 1 April. More guidance on the new and existing supervision levels can be found in our guidance booklet OPG507, ‘A guide to supervision of deputies’, at www.publicguardian.gov.uk. New feesThere was broad support for the changes to the OPG and court fees, especially for a reduction in the fee for applying to register an LPA. Some other comments were received not directly related to the consultation questions, such as the OPG clarifying how its charges were calculated – where multiple applications to register LPAs are made, fees should be reduced. The OPG will consider these further suggestions as part of the ongoing work to look at the implementation and impact of the MCA. The fee changes were implemented on 1 April 2009 and include: The postal address for the Office of the Public Guardian changed on 5 May. It is now:Office of the Public GuardianPO Box 15118BirminghamB16 6GX Full details can be found in our guidance booklet OPG506, ‘Court of Protection and Office of the Public Guardian – Fees, exemptions and remissions’, also at www.publicguardian.gov.uk. We will continue to make improvements to OPG services over the months and years to come. A complete business process review is under way which will streamline the processes applied to all stages of our work and will remove surplus activities that don’t add value and in effect may hinder our service. I have also been giving thought to whether the OPG is best organised to deliver excellent services. An office with a single presence in London is not, in my view, ideally placed to meet the demands of increasing workloads and the needs of customers who want a responsive and effective service. For that reason, work is going on to moves parts of the OPG business to locations out of London in a phased way. From 5 May 2009, some business functions moved to a new office in Birmingham and later in the year other functions will transfer to Nottingham. During these changes we will maintain the quality of service our customers expect to receive. The court transferred to become part of HM Courts Service on 1 April, joining the Royal Courts of Justice Group. The staff and operations will remain in Archway Tower until HMCS estates plans in London develop. Over the coming months, the court forms, guidance and practice directions will move to the HMCS and DirectGov websites, although the OPG website will continue to provide signposts to this information. For further information about the work of the OPG, the options to plan (including all the forms and guidance materials) and to access our new ‘Information for professionals’ section, which is specifically aimed at professionals, visit our website. Alternatively, telephone the customer contact centre on 0845 330 2900, or email [email protected] In July 2008 Martin John assumed the role of public guardian and chief executive of the OPG. The OPG supports and promotes decision-making for those who lack capacity to make decisions or would like to plan for their future, within the framework of the Mental Capacity Act 2005. New LPA formsResponses to proposed new LPA forms were generally supportive – there was strong support for incorporating guidance notes into the margins of the form. Suggestions to reword or add to the guidance notes will be considered in the final redesign. Respondents acknowledged difficulties in finding a balance between the length of the form, and including the requirements and safeguards laid down in the MCA. Where we can reduce the length of the form, we will do so during the redesign. The OPG is working with professional accessibility experts to help with the redesign of the LPA forms. A critical part of the process will be thorough testing of the new forms by customers, stakeholders and staff. It is our intention that the forms, revised guidance literature and supporting regulations will be introduced into parliament at the beginning of July 2009, in readiness for launch from 1 October 2009. Fee payable on making an application to register an LPA reduced to £120.00, the same as that to register an EPA; Fee to assess the appropriate supervision fee for deputies and for placing deputy details on a register reduced to £100; and a New type 2A supervision fee of £350. The Court of Protection postal address is:11th FloorArchway Tower2 Junction RoadLondonN19 5SZ
The lord chancellor did, however, say the 2.5% rate could be varied if there are exceptional circumstances which justify this. Section 1(2) of the Damages Act 1996 Act states that variation can be made ‘if any party to proceedings shows that it is more appropriate in the case in question’. Inflation, as measured by the RPI since 2001 has averaged 3.16% a year; not ‘well below’ 3% as anticipated. ILGS; the temporary aberration due to lack of supply in 2001 has continued. ILGS yields have been languishing in the 1-2% range since then. Recently, yields have risen but it appears that this is due to credit crunch conditions, with increased government spending and falling inflation which are unlikely to last. Claimants cannot afford to take substantial risks in order to meet their future needs. Many who have witnessed the loss of 40% of equity values in the last 12 months will certainly not want to take those risks in future. For investments between 2001 to the end of June 2008, the real rate of return has been around 1.15% a year, significantly less than the 2.5% discount rate. The lord chancellor’s reasoning appears, with the benefit of hindsight, incorrect on several fronts. There is an urgent need to revisit the discount rate. A lower rate would give claimants a greater lump sum, which would allow investment at low risk in accordance with Wells. What needs to happen?It is now settled law that periodical payments linked to RPI for future losses which are earnings-based potentially under-compensate claimants. The 2.5% discount rate and the lord chancellor’s reasoning should be revisited in light of Thompstone and the economic reality: Increase on current % – +19.61% +31.83% +54.10% +68.29% Discount rate case lawThere have been two main legal challenges to the discount rate. In Warriner v Warriner  EWCA Civ 18, the claimant had significant future losses and a further life expectancy of 46 years. It was argued that those factors were exceptional, requiring a reduction in the discount rate from 2.5% to 2%. The appeal court rejected the argument on the grounds that the circumstances in Warriner were not exceptional. In Cooke v United Bristol Healthcare  EWCA Civ 1370, the appeal court reached a similar conclusion to Warriner but differed in its reasons. The central argument in Cooke was that care costs increased at a steeper rate than the RPI, the argument now so familiar after Thompstone. Therefore, the 2.5% discount rate is too high as claimants need a larger conventional lump sum to cover the differential between the RPI and care-related earnings. The appeal court seemed sympathetic to the issue but considered that the Cooke appeal amounted to a plain attempt to subvert the lord chancellor’s rate. However, these cases came before Thompstone had ruled on these issues fully. Nick Martin is an IFA and a partner at the Nestor Partnership. Richard Money-Kyrle is a partner at Darbys in Oxford Financial impact If RPI is 3% a year and earnings go up by 1.75% above RPI – the result would equate to a 4.75% assumed real return. Add to that the current 2.5% discount rate and the total required return is 7.25% a year. Until recently, investment in index- linked government stock (ILGS) would not support that level of return. It is also unlikely that a more risky investment portfolio would come close. Any investment return lower than 7.25% net means claimants run out of money early. The table (bottom) illustrates the lump-sum cost of a £50,000-a-year future loss, for a claimant aged 13 at trial. If the discount rate were reduced from 2.5% to 1% the damages would be 54% more. Multiplier 33.14 37.84 43.69 51.07 55.77 The Court of Appeal in Thompstone determined that periodical payments for future losses for care and case management should be linked to an earnings index which annually has historically risen by 1-2.5% higher than the RPI. Those fortunate claimants getting earnings-related periodical payments can be comfortable that the money they get for care will meet their needs for the rest of their lives. There are many more modest claims involving future losses, which are unsuited to periodical payments owing to immediate capital needs using the bulk of the award. There may be large and ongoing losses such as earnings or transport but also capital needs for accommodation and equipment. Claimants in these cases still have to rely on the lump-sum approach – this is the new battleground. The current discount rate is incorrect. If the discount rate (currently set at 2.5%) is too high and is used to calculate the multipliers used in the schedule of future losses, claimants’ damages will run out earlier than their predicted life expectancy. The assumed returns on low-risk investments of 2.5% above the RPI, upon which the current discount rate is based, are not realistic. Claimants have to take more risks with their damages to achieve that rate or accept a shortfall. It has been demonstrable for some time that the basis of the 2.5% rate is optimistic and the recent financial meltdown highlighted this. On the basis of the reality of returns, the discount rate should be no more than 1.5% and possibly as low as 1% – but that would mean a huge increase in damages for claimants. i) The rate of inflation in future was expected to stay well below 3%; ii) High demand for ILGS and the scarcity of supply has led to the yields being artificially low, but this is temporary; and iii) He had applied the legal principles laid down in Wells v Wells  1 AC 345. Lump sum amount (£) £1, 657, 000 £1, 892, 000 £2, 184, 000 £2, 553, 000 £2, 788, 500 Discount rate Current 2.5% At 2% At 1.5% At 1% At 0.75% Setting the discount rateThe discount rate of 2.5% set by the lord chancellor in June 2001 has not been changed since. It is based on the claimant investing the lump-sum damages into ILGS and achieving a 2.5% a year real return (2.5% above RPI). Later in 2001, the lord chancellor reconsidered his decision. He did not change the rate but provided reasons and explained why he chose to round up to 2.5% rather than down. His reasons were: Another chance?The financial analysis in the Thompstone periodical payment orders cases showed that RPI is inappropriate for the indexing of damages for future earnings-based losses. On that basis, a discount rate based on it must also be wrong. Large lump-sum settlements simply may not work and lawyers must advise their clients as to the risks. Expert advice is vital to ensure that the flaws of the current discount rate are clearly assessed and explained. Even in larger cases suited to earnings periodical payment orders the discount rate affects recoverable damages as all multipliers are based on it. Where there are already shortfalls between what must be spent and what the claimant can recover, such as Roberts v Johnstone calculations for housing, correcting the discount rate is even more important. Therefore, the incorrect and high discount rate infects the whole system and disadvantages injured claimants. The lord chancellor should urgently review current economic and investment conditions and reconsider the discount rate.
Mental health lawyers have expressed concern at the impact of the Legal Services Commission’s recent tender process as national firm Duncan Lewis seeks to recruit 28 mental health lawyers under a new consultancy model to fulfil its contracts. Duncan Lewis, an established legal aid provider in London with a team of 11 qualified mental health solicitors, has been given contracts to deliver mental health work in 10 new procurement areas across the country, ranging from the East Midlands to the south-east coast, and Yorkshire and Humber. The firm submitted speculative bids to the LSC in areas where it currently has no permanent presence, although it has existing clients. Having won contracts, it is now attempting to recruit 28 mental health panel members to work on a consultancy basis, with lawyers paid 80% of the legal aid fee, and 20% being retained by the firm. Duncan Lewis said it hoped to expand its mental health expertise into areas of the country where there was an undersupply, building on the consultancy model that it had previously trialled successfully. However, solicitors warned that the tender result meant that firms with established mental health departments in some areas were facing closure after failing to win any mental health work or being offered contracts too small to be viable. Richard Charlton, chairman of the Mental Health Lawyers Association, said: ‘This example illustrates how badly designed the tender process was. It has resulted in enormous disruption for firms which will be felt by clients.’ Lucy Scott-Moncrieff, mental health partner at virtual firm Scott-Moncrieff Harbour & Sinclair, said: ‘Nobody can fault Duncan Lewis or any other firm for making speculative bids in the current situation.’ But she warned that, as firms seek to get the required staff in place, there could be a great deal of upheaval. The contract requires firms to have one supervising lawyer for every six caseworkers. Scott-Moncrieff said: ‘Supervisors are limited in number and it therefore seems likely that those firms seeking supervisors will be recruiting them from other firms.’ Duncan Lewis’s practice manager Adam Makepeace said: ‘We sympathise with firms which have reduced contracts. We spent over five years growing a successful and high-quality mental health department [in the capital] but have received less than 20% of our previous matter start allocation in London. He added: ‘The apparently unintended consequence of the tender process of undermining the viability of some of the highest-quality mental health practices anywhere in the country is a matter of great concern to all who work in this field.’
The claimant was acting in the capacity of personal representative of her son. Her son had been employed as a geologist by the defendant company. Under the terms of his contract, the defendant was required to insure his life for sixty times his basic monthly salary, then $4,000. The defendant had not carried any such insurance, but its parent company had. However, the policy had a cap of £400,000 on liability arising out of any one event. In November 1998, the claimant’s son was working at a mine in Angola when it was attacked by rebels. Four employees were killed and four other employees, including the claimant’s son, were abducted. The insurance company eventually proposed an ex gratia payment of £400,000 in respect of the four abducted employees who had been presumed dead. Prior to payment the parent company required a waiver from the beneficiaries, including the claimant, of all and any further claims against the defendant or the group. The claimant wished to obtain the benefit of the defendant’s full responsibility to insure her sons’ life in the sum of $240,000 and was not willing to give the waiver. In August 2004, she began proceedings against the defendant for breach of contract. During the course of the proceedings, the claimant’s share of the ex gratia payment was paid into court. Three interim payments out of court were subsequently made in respect of costs orders made against the claimant. In December 2009, the remaining funds were transferred to the claimant. In January 2010, judgment was given in favour of the claimant, in the sum of £273,711.60, representing a payment of $240,000 plus interest. The judge subsequently deducted the sum paid into court by the insurers, giving a final judgment sum of £115,890.60. The claimant sought permission to appeal against the judgment on the grounds that: (i) the judge had deducted the balancing figure rather than the sum which she had received from the insurer; (ii) the judge should not have deducted the funds paid into court to meet the interim costs order. She also sought permission to appeal in respect of a number of earlier appeals. Permission for appeal was granted on the first ground only. She submitted, inter alia, that the judge had erred in his calculation of the proper net sum payable by the defendant. The court ruled: In the instant case, the defendant’s adjudged liability in total was £273,711.60. The claimant had received a total out of the insurers’ funds paid into court of £152,477.77, being the £36,587.17 paid out to fund the interim costs orders and the £115,890.60 paid out on 8 December 2010. If the sums received by the claimant were deducted from the defendant’s adjusted liability, the balance ought to be £121,233.83, and not the £115,890.60 referred to in the judge’s order (see - of the judgment). The claimant appeared in person. The defendant did not appear and was not represented. Life insurance – Policy – Insurance policy having cap on liability Pope v Energem Mining (IOM) Ltd: Court of Appeal, Civil Division (Lords Justice Rix, Patten): 5 September 2011
The head of law reform and human rights organisation Justice has heavily criticised the lack of diversity in the top echelon of the judiciary. ‘We are shamed’ by the lack of women and ethnic minority judges in the Supreme Court, compared with the US and Canada, Roger Smith told a House of Lords constitution committee hearing on judicial appointments yesterday. There is only one woman among the 10 UK Supreme Court justices, compared with four out of nine in Canada and four of 12 in the US, he pointed out. While the quality of judges should not be compromised, Smith stressed, diversity must also be a key factor in the judicial appointments process. Smith, a Gazette columnist, added: ‘Certainly people want a good judge and have a right to expect that. What you want is a system in which people have confidence. That comes from whether people have won or not; whether a decent job has been done; and [also] comes from the perception of justice.’ Smith’s call for greater diversity in judicial appointments was echoed by Law Society president John Wotton and Bar Council chairman Peter Lodder, who also gave evidence to the committee. Wotton said the Society is actively encouraging more solicitors to join the judiciary amid concern about the ‘relatively low’ number of solicitors appointed. He said: ‘I would like to see more good solicitors come through and will be looking at ways of having a dialogue with larger firms to think about how to overcome the loss more creatively; and if it’s possible to achieve flexibility.’ Lodder said the situation will improve in the coming years as advances in the profession as a whole filter through to the judiciary. ‘The professions, both solicitors and barristers, have made efforts to improve the diversity within their own number. It’s very important to recognise that is the basis for much of the judiciary for much of the next 10 to 15 years.’
The CJC working group’s analysis of the options for implementing Jackson’s reforms to proportionality, Part 36 offers and QOCs will be covered in more depth in the next issue of Litigation Funding magazine. Follow Rachel on Twitter Last Monday, a group of leading experts in civil justice – many of them solicitors – gathered for a comprehensive discussion on some of the crucial detail concerning the rules required to implement Lord Justice Jackson’s radical reform of civil litigation costs. With the reforms on course to be introduced next year, despite vocal opposition from claimants, there are still plenty of battles to be fought between claimants and defendants on the detail. The meeting, also attended by justice minister Jonathan Djanogly and Ministry of Justice civil servants, discussed a 102-page document drawn up by the Civil Justice Council’s working party on the costs aspects of the reforms. The tome, which is surprisingly readable, represents the many hours spent by the working party – comprising some of the most talented and experienced practitioners in the field of costs – in analysing and weighing up how the reforms might best work in practice. But before the experts could get stuck into their discussions, they were given a written outline of Lord Justice Jackson’s own comments on the document, which have also been published on the judiciary’s website. He may not have been present, but his influence was still felt. Jackson warned against any ‘elaborate practice note’ seeking to implement his proportionality rule. He also suggested that a few ‘robust Court of Appeal decisions’ would be needed to deal with the points raised – no prizes for guessing who’ll be sitting on the bench. The Court of Appeal judge clearly still has much to contribute to the implementation of the reforms. But his influence should not overpower that of the experts on the ground who have spent much time poring over the detail of the proposals, and have an invaluable understanding of the more subtle effects of the various options for implementation, and their impact on their clients or businesses. While the judge’s intervention may have caused some consternation among those present at the meeting, a source of greater concern for some was the MoJ’s plans to introduce a means test to be eligible for qualified one-way costs shifting (a system put forward by Jackson designed to protect personal injury claimants from having to pay costs if they lose in most cases). One option being considered by the MoJ is the exclusion of higher income tax payers from QOCs; though that would not appear to tally with Jackson’s original suggestion that only the ‘conspicuously wealthy’ should be excluded. Another worry from the claimants’ perspective is a further MoJ plan to introduce some kind of minimum payment by claimants where QOCs applies, possibly linked to income. Both MoJ proposals met with strong opposition from the claimant side last week; though whether they have succeeded in convincing the minister remains to be seen.
Alliance Bank JSC v Aquanta Corporation and others: QBD (Comm) (Mr Justice Burton): 14 December 2011 The claimant bank, based in Kazakhstan, alleged that the defendants had been party to a conspiracy to deprive the claimant of $1.1bn. The sixth, seventh and eighth defendants were brothers (the brothers). The sixth defendant was, at the material time, chairman of the board of the claimant. Between November 2005 and April 2008, it was alleged that the claimant was caused by the conspirators to acquire US Treasury notes called STRIPS, in a total value over the period of $1.1bn. The conspirators caused those STRIPS to be charged or pledged to two Cypriot banks as security for loans made by those banks to the first, second, third and fourth defendant offshore companies, who were beneficially owned by the sixth defendant. The loan funds were then paid out through circuitous routes to or via other offshore companies, owned by one or more of the brothers or a member of their family, and much of the funds ended up with the ninth defendant company, at the material time owned by the brothers. The claimant alleged that that had been a dishonest scheme. In April 2009, the claimant instigated a criminal investigation in Kazakhstan, conducted by the Kazakh general prosecutor. In October 2009, the sixth defendant was charged in the criminal investigation. In April 2011, the claimant was granted permission to serve proceedings claiming the value of the loans by way of subrogation out of the jurisdiction and a worldwide freezing order. In July 2011, the sixth, 11th and 13th defendants were convicted in Kazakhstan. The first, second, third, fourth, sixth, seventh, eighth and ninth defendants (the active defendants) applied, inter alia, to set aside the proceedings against them and service upon them, on the basis that the matter should be heard in Kazakhstan. The active defendants submitted, inter alia, that the UK was not the appropriate forum for the claimant’s claims because: (i) the litigation was a complex international fraud dispute; (ii) it was not the lender that sought to enforce the loan agreements but (unforeseeably) the claimant by way of subrogation; (iii) none of the defendants were based in the UK; (iv) there was a mass of documents and witnesses from the criminal proceedings in, or amenable to the jurisdiction of, Kazakhstan; and (v) the claimant itself had commenced proceedings in Kazakhstan, even though, in the event, they had, for the time being, come to an end. The claimant submitted, inter alia, that the fee of 3% of the $1.1bn claim levied by the Kazakh court was a substantial sum and would not be leviable in the UK. The application would be allowed. On the facts, the claimant had not established that the Commercial Court in the UK was clearly and distinctly the most appropriate forum, and that there were strong reasons or exceptional circumstances why the subrogated claims under the loan agreements should not be confined to the UK jurisdiction. There was an overriding Kazakh feel to all the claims being made. Almost all of the events had taken place in Kazakhstan; Kazakh law might have an important role to play; all, or almost all, the substantial quantity of documents would be in Kazakhstan. Above all, there had been detailed proceedings in Kazakhstan; which had resulted (subject to possible appeal) in the conviction of the sixth defendant and important findings of fact by the Kazakhstan courts. The evidence to establish certain allegations would be overwhelmingly in Kazakhstan. The 3% fee was not a sufficient juridical disadvantage to outweigh the otherwise appropriateness of the Kazakh forum (see  of the judgment). The service of the proceedings against the active defendants would be set aside (see  of the judgment). Service out of the jurisdiction – Alternative forum available – Claimant bank alleging fraud by defendants Kenneth MacLean QC and Nicholas Sloboda (instructed by Slaughter and May) for the claimant; Steven Thompson (instructed by Fox Williams) for the first and second defendants; Richard Slade QC (instructed by Klein Solicitors) for the third and fourth defendants; Richard Morgan QC and Thomas Munby (instructed by Dewey & LeBoeuf) for the sixth defendant; Harry Matovu QC (instructed by Memery Crystal) for the seventh and eighth defendants; Rosanna Foskett (instructed by Stevens & Bolton, Guildford) for the ninth defendant; The fifth, 10th, 11th, 12th, 13th, 14th and 15th defendants did not appear and were not represented.
Workplace stress – Employee diagnosed with Chronic Fatigue Syndrome From 24 November 2004, the claimant was employed as a human resources manager in the London office of the defendant company. The defendant was a well-established financial services company based in the US. Having worked for the defendant for just over a year, on 6 January 2006 the claimant felt dizzy and ill at work, and left the office. In Spring 2006, she was diagnosed as having Chronic Fatigue Syndrome (CFS). After suffering from the condition for over five years, her prognosis was not good. Through the defendant she had permanent health insurance. That paid her an income until August 2009 when the defendant’s London office closed and, with the rest of the staff, the claimant was made redundant and her insurance payments ceased. The claimant brought a claim against the defendant alleging, inter alia, that she had developed CFS as a result of the amount and nature of her work with the defendant; and, during the period of her employment, the indications of impending harm to her health arising from stress at work had been sufficiently plain that the defendant, as a reasonable employer, realised or ought to have realised that it should have take steps to prevent that harm in fact occurring. Those steps should have included additional assistance, and additional support from her superiors, from May 2005 or from August 2005 at the very latest. She made a lifetime loss claim valued at approximately £1.25m. The defendant resisted the claim, in particular that the defendant: (i) denied that the claimant’s CFS was caused by her work; and (ii) in any event denied that it was foreseeable that the claimant would become ill as a result of her work, and contended that it was not in breach of any duty to her because there had been no indications of impending harm to her health as a result of her work that triggered any obligation in the defendant to take reasonable steps to avoid such harm occurring. The main issue for determination by the court was medical causation, namely, whether the claimant’s CFS had been caused by stress she suffered at work at the defendant. It was submitted on behalf of the claimant that, but for the nature of her work at the defendant, she would not have contracted CFS. She contended that the overwhelming stress which she had suffered at work had undermined her immune system, reducing her body’s ability to defend itself against infectious diseases as evidenced by her record of illness in 2005. The claim would be dismissed. It was insufficient for a claimant to show that his employer knew or ought to have known that he had too much work to do, or even to show that he was vulnerable to stress as a result of overwork. To succeed, he had to show that his employer knew or ought to have known that, as a result of stress at work, there was a risk that he would suffer harm in terms of a psychiatric or other medical condition. Even then it was insufficient merely to show that there was a known risk of some psychiatric or other injury in the future. The claimant had to show that the employer knew or ought to have known that, as a result of stress at work, there was a risk that he would suffer harm of the kind he in fact suffered. Although most employees would have difficulties with the amount or nature of their work from time-to-time, very few were at risk of psychiatric illness as a result. An employer was entitled to assume that an employee could withstand the normal pressures of the job unless, inter alia, the job was such that employees were known to be at particular risk if injury (see - of the judgment). In the instant case, given the current state of medical knowledge and opinion, the claimant’s argument on causation was bold. There was no proven causal link between stress or a deficient immune response on the one hand, and CFS on the other. On the evidence, given the pattern and nature of her illnesses in 2005, the court was not satisfied that her stress at work had caused any diminution in her immune system, nor that her CFS had resulted from a reduced immune response. On the facts, the expert evidence was, overwhelmingly and all but unanimously, against those propositions. The claimant had failed to satisfy the court that her CFS had been caused by stress at work. As a result of that conclusion the claim failed (see - of the judgment). David Melville QC (instructed by Anthony Gold) for the claimant; David Platt QC (instructed by Kennedys Law LLP) for the defendant. MacLennan v Hartford Europe Ltd: Queen’s Bench Division (Mr Justice Hickinbottom): 24 February 2012 Bonser v RJB Mining (UK) Ltd  IRLR 164 applied; Garrett v London Borough of Camden  All ER (D) 202 (Mar) considered; Pratley v Surrey County Council  All ER (D) 438 (Jul) considered; Hartman v South Essex Mental Health and Community Care NHS Trust  All ER (D) 141 (Jan) considered.
Section 78(2) of the Criminal Justice Act 2003 provides: ‘Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).’ The trial of the offences involving the victim began in June 1999. At the outset, it was submitted to the trial judge on behalf of the accused person, B, that the proceedings should be stayed as an abuse of process or that evidence of a DNA match (the evidence) should be excluded in accordance with the discretionary provisions in section 78 of the Police and Criminal Evidence Act 1984. The judge acceded to that submission and held that the evidence should be excluded. As the relevant provisions of the 1984 act had not been complied with, the prosecution ought not to be permitted to use that material. The judge further held that, if he had been wrong in his conclusion based on the construction of the 1984 act, the evidence would also have been excluded under section 78 of the 1984 act. As a result, the prosecution were left with no alternative but to offer no evidence and the judge stated that, on the basis of his ruling (the ruling), the matter could not go forward. In 1999, it was not open to the prosecution to appeal against the ruling. Instead, the ruling was challenged on a point of law by way of a reference by the attorney general pursuant to section 36 of the Criminal Justice Act 1972. The House of Lords concluded that the decision of the judge had been wrong and that the statute did not provide that evidence obtained in consequence of a breach of the statutory provisions in the 1984 act was inadmissible. Notwithstanding the ruling that the evidence would have been admissible as a matter of law, the case was at an end. The prosecution subsequently applied to the Court of Appeal, under section 76 of the Criminal Justice Act 2003 for the acquittal to be quashed and for a re-trial to be ordered. The issue that fell to be determined was whether the evidence could be described as ‘new’ in the context of, and for the purposes of, section 78(2) of the 2003 act. Consideration was given, inter alia, to sections 75 to 79 of the 2003 act. The court ruled: For the purposes of sections 75 to 79 of the 2003 act, the word ‘proceedings’ was designed to cover the entire process which had resulted in the original acquittal. However, as a matter of statutory construction, it did not follow that all evidence which had been available to be deployed in the earlier proceedings had to fall outside the ambit of the ‘new’ evidence provision on which section 76 applications had to be based. Subject to the interests of justice requirement found in section 79, evidence which had been available to be used, but which had not been used, could be ‘new’ evidence for the purposes of section 78(2). The mere fact that evidence had been available at the original trial did not mean that it had been adduced in those proceedings (see ,  of the judgment). The contents of parliamentary debates on the issues were entirely consistent with that interpretation of the statutory provision. It was clear that the language of clause 65(2) of the original bill (the predecessor to section 78(2) of the 2003 act), to the effect that, where at the original trial evidence had been available in the broad sense, it should not be treated as new evidence, had been deliberately amended to the current position which was that, whether or not it had been available, it was new evidence if it had not been adduced in the proceedings (see ,  of the judgment). On the facts, the evidence which had been excluded by the judge constituted new evidence for the purposes of section 78(2) of the 2003 act on the basis that it had never been adduced in or brought forward for consideration as admissible evidence at the original trial. Once the judge had ruled that the evidence should not be admitted at B’s trial, notwithstanding that it had been available for his consideration and that he had considered it, it had not been adduced in the proceedings (see ,  of the judgment). Trial – Retrial – Application to quash acquittal of acquitted person and for retrial Kieran Coonan QC and James Leonard (instructed by Shaw Graham Kersh Solicitors) for B; Alison Levitt QC and Catherine Moore (instructed by the Crown Prosecution Service) for the Crown. R v B: CA (Crim Div) (Lord Chief Justice Lord Judge, Mrs Justice Macur, Mr Justice Saunders): 29 February 2012
In addition, all panel firms must work for fixed fees; establish electronic links with the panel manager to facilitate case allocation and case tracking; and have accreditation with the Law Society’s Conveyancing Quality Scheme. Firms must be regulated by the Solicitors Regulation Authority or the Council of Licensed Conveyancers; have a minimum of four regulated principles or directors and at least two licensed conveyancers or qualified solicitors. Entities must have been actively trading in purchase and sale conveyancing for at least six months; completed a minimum of 250 residential conveyancing transactions (excluding remortgages) over the previous two years; and have professional indemnity insurance cover of at least £2m. The Office of Fair Trading has declined to investigate HSBC over the small size of its conveyancing panel, saying the arrangement does not have a ‘sufficiently negative impact on competition’. East Grinstead sole practitioner Elaine McGloin contacted the watchdog after HSBC announced its new panel in January. The panel contained only 39 solicitor firms and four licensed conveyancers companies. McGloin told the OFT that the lender’s action restricted freedom of consumer choice and was anti-competitive, as the majority of firms would not be able to compete for work from clients with an HSBC mortgage. The OFT said it would not take any action because HSBC’s actions are ‘not having an appreciable effect on competition at this time’. Responding to a follow-up letter from Rob Hailstone, chair of the high street firm network Bold Legal Group, the OFT said: ‘Given HSBC’s relatively small share of the mortgage lending market and the fact that proportionately it will continue to have a significant list of firms on their panel, and consumers still have a wide choice of firms and lenders to choose from, it is not clear to us that the issue is having a sufficiently negative impact on competition (and therefore causing detriment to consumers) to warrant the OFT prioritising it.’ The OFT said that despite the change HSBC still has a ‘fairly significant’ panel of solicitors, adding: ‘We expect that it will continue to have an extensive conveyancing panel which includes smaller as well as larger firms.’ It noted that HSBC customers can instruct other firms not on HSBC’s panel, but must cover the cost of a panel solicitor to act on behalf of the bank, which the OFT said ‘may well be a legitimate commercial decision by HSBC to protect its interests in the transaction’. In addition, the OFT said: ‘Justifications to HSBC’s actions may be in line with maintaining consistent quality of service. This may be better achieved by HSBC using certain solicitor firms who are more familiar with the bank’s procedures, consistently carry out a certain volume of work and may be more familiar with the bank’s requirements as they change.’ It added: ‘Customers of HSBC may also benefit from the lender’s ability to monitor and control quality due to the repeated interactions they have with their panel firms.’ A spokeswoman for HSBC, which has a 10% share of the new sales mortgage market, told the Gazette that the panel is not closed and currently has 33 applications being considered. Commenting on the OFT’s view, McGloin said: ‘Its approach seems short-sighted, looking at HSBC’s actions as just a one-off.’ But she said: ‘Other lenders may follow suit, which will be a big issue for firms, especially smaller ones, as it will drive work away from the high street to big out-of-town factories, which are rather faceless.’ Hailstone added: ‘The OFT is missing many points when it comes to considering the wider implications of this matter.’ He said he received ‘horror stories on a daily basis’ from firms detailing delays and inefficiencies by some of the HSBC panel firms, and will be writing again to the OFT asking it investigate the matter urgently. Desmond Hudson, Law Society chief executive, responded: ‘While the OFT may have offered an individual response to Ms McGloin, I certainly don’t think the door has closed on this issue. The Society has had recent contact from the OFT, requesting additional information on these and related issues. We have provided a detailed response. If the OFT were to act, it would most likely take the form of a study into the wider lending market, rather than merely an investigation into an individual lender. ‘We will be in contact with Ms McGloin to add her concerns to our other evidence. It would be helpful if members continue to contact the Society first rather than approach bodies like the OFT directly. In the meantime, the pressure felt by HSBC as a result of the campaign by the Law Society and its members is undoubtedly mounting. ‘We will continue to press for a change in the banks approach to its conveyancing panel, in our members’ interests and in the interests of consumers.’ Meanwhile, HSBC’s head of lending Martijn van der Heijden revealed the criteria for its panel membership. These are: