Insight from Horwich Farrelly s Large & Complex Injury Group

Transcription

1 Insight from Horwich Farrelly s Large & Complex Injury Group Issue #27 01 September 2016 Alexander House 94 Talbot Road Manchester M16 0SP T F Page 1

2 Welcome to this week s edition of Insight. In this week s edition we look at cases relating to: Gaining permission to rely on expert evidence Applying the data protection regulations sensibly Failing to include credit hire in a Portal claim Should you have any feedback or comments please do not hesitate to contact me at malcolm.henke@h-f.co.uk. Malcolm Henke, Partner & Head of LACIG Civil Procedure - Expert Evidence Stoffell v De Verteuil [Lawtel 31/08/2016] looks at a judge s approach to an application to introduce an additional expert witness long after the existing evidence had been exchanged. The claimant had been injured in the accident, which occurred in September She came off her motorcycle at speed and slid along the road and into the path of the defendant motorcyclist, which collided with her, causing injuries. Liability was agreed to be 60/40 in the claimant's favour, but the causation and quantum of damages were at issue. A trial window had been set for October Each party had submitted expert evidence from a plastic surgeon and an accident reconstruction expert. The claimant wished to adduce further expert evidence regarding the protective motorcycling trousers that she had been wearing. The claimant submitted that the evidence was clearly relevant to an issue at trial, and that under CPR 35, the court should allow it to be adduced. The defendant submitted that relief from sanctions principles applied, and that the failure to adduce the evidence earlier was a serious breach for which no proper explanation had been given. The court based its approach primarily on CPR 35 rather than on relief from sanctions principles Allowing the claimant s application, the deputy High Court judge held that the evidence that the Page 2

3 claimant sought to rely on was relevant. A trial judge would wish to have it before them. It was not too late for the evidence to be adduced, as there was still sufficient time for the defendant to obtain evidence from his own experts. The court was not persuaded that that would require a detailed investigation into the composition of the trousers. Although the claimant's solicitors were to be criticised for the substantial delay, and for the failure to address that delay in the application, it was appropriate to permit the claimant to adduce the evidence. The court based its approach primarily on CPR 35 rather than on relief from sanctions principles. There would be no prejudice to the defendant, save for additional costs. Although the evidence should have been disclosed much earlier, it was material and permission was granted to adduce it. Comment This application was allowed because the judge took the view that although it was late it was clear that the additional evidence would assist the trial judge. Compliance with the court timetable is important but achieving justice between the parties remains equally desirable. Data Protection and the Provision of Personal Details We are grateful to the Association of British Investigators for drawing our attention to the case of Bangura v Loughborough University (2016) EWHC The case will be of interest to those concerned with investigating suspicious claims. The claimant had been a student at the university. In 2010 there had been various complaints of sexual assault on the campus. An informant had approached the university's security staff and said that the claimant had behaved strangely and said things which were suspicious in connection with the assaults. The police were called and the informant gave at least part of the claimant's name and his address. The university provided the police with a registration form which had been completed by the claimant and which included his full name, address and date of birth. The police attended the claimant's address and he was arrested. He was later released and never charged with any offence. The claimant subsequently brought proceedings against the university, the police and the university's student union. Against the university he alleged that the disclosure of his personal details and photos without his consent had been contrary to the Data Protection Act 1998 and amounted to a breach of contract. A Master later granted summary judgment in favour of the university and students union; the claim against the police continued. The claimant's subsequent application for permission to appeal against the Master's order was dismissed as wholly without merit. In the ongoing proceedings, a police officer produced witness statements in which he clarified that the information had been disclosed by the university in advance of a written request by the police. In the instant hearing, the claimant sought permission under CPR to reopen his application for permission to appeal against the Master's order awarding the university summary judgment. He sought permission to rely on the police officer's evidence to argue that the fact that the university had disclosed his personal information prior to any written request was contrary to its own data protection policy, which formed part of the contract between him and the university and which stipulated that any requests for disclosure had to be made in writing. He contended that he was entitled to relief for breach of the Act, breach of contract, breach of trust, and conspiracy. The police were investigating a serious series of sexual assaults which were of great concern to the whole university community Refusing the application, the High Court judge held that the claim based on the Act was unarguable. The Act clearly contemplated the data controller being exempt from the first data protection principle, namely that data had to be handled fairly and lawfully, if the information was sought by the police for the purpose of the detection of crime or for the apprehension or prosecution of offenders. There was nothing in S29 of the 1998 Act which stipulated Page 3

4 that the request had to be made in writing. The condition in Schedule 2 6(1) of the Act was plainly satisfied, namely that the processing was necessary for the purposes of legitimate interests pursued by the data controller or by the third party to whom the data was disclosed. The police were investigating a serious series of sexual assaults which were of great concern to the whole university community. Aside from the university's general desire to assist the police in the detection of crime, the situation at the time meant that there were additional reasons why the university would have been particularly keen to assist the police. The claim based on an alleged breach of contract also had no realistic prospect of success. The suggestion that the data protection policy was incorporated as a contractual document was not sustainable. The registration document did not purport to incorporate the policy as part of the contract between the student and the university, nor did the policy itself. Like many non-contractual policies, it articulated what practice the university expected to adopt. Any failure to follow through on what the policy envisaged did not necessarily mean that there was a claim for breach of contract. The policy could not be understood to mean that there would be an invariable rule that information would only be provided to the police if a written request was made in advance. Although the policy said in mandatory terms that there had to be a written request, it was inconceivable that the drafter had intended that the university would be precluded from providing information if the circumstances of the situation prevented a written request being made in advance. In any event, the loss relied on, namely the arrest, had not been caused by the disclosure given by the university. The claimant had been arrested at the address provided by the informant, so the loss would still have occurred whether or not the university gave disclosure. Since there was no arguable claim for breach of contract, there could also be no realistic prospect of success in the claims based on breach of trust or conspiracy. Comment Organisations can become obsessed with data protection regulations and hide behind them as an excuse for not providing information. This case acts as a reminder that the risk of a breach is minimal if the request for information is made by a party with a legitimate reason for seeking it; is properly considered by the data holder; and is provided for the genuine purpose of prevention or detection of a crime. Provided these criteria are satisfied this case indicates that a written request for the information is not a pre-requisite. Page 4

5 RTA Portal for Low Value Claims In Smikle v Global Logistics [Lawtel 17/08/2016] the claimant had been injured and his car damaged in a collision. He claimed damages, and in June 2015 his solicitors submitted a claim form through the Portal for low value personal injury claims arising from road traffic accidents. The claim form indicated that the claimant's car had been damaged. However, his solicitors also ticked the boxes indicating that he neither needed, nor had been provided with, an alternative vehicle. The form was supported by a statement of truth signed by the solicitors. proceedings. They were entitled to rely on a statement of truth, or a certificate signed by a solicitor, indicating that there was no claim for car hire. A signed statement of truth was deemed to be a statement made by a solicitor on behalf of the client to the effect that the document to which it was attached was both genuine and a genuine reflection of the truth. In the instant case, to go behind the statement of truth on the claim form would be to go behind the whole spirit of the CPR. It would therefore be an abuse of process for the car hire claim to proceed. In July and August the claimant submitted two further claim forms containing the same information. None of the forms indicated a claim for car hire. In fact, the claimant had been using a hire car and in August the car hire company wrote to the defendants indicating a claim for car hire. The defendants replied, but when they heard nothing further they went on to settle the Portal claim. The Stage 2 settlement pack indicated that there was no car hire claim. In January 2016 the claimant, through fresh solicitors, issued a claim for special damages, including credit hire. The defendants applied for summary judgment on the basis that the claim was an abuse of process. (The defendants) were entitled to rely on a statement of truth signed by a solicitor, indicating that there was no claim for car hire Finding in favour of the defendants, the District Judge held that the court's task was made more difficult by the claimant's failure to file a witness statement either setting out the circumstances or giving any explanation of how the instant situation had arisen. Comment This case highlights the need for a claimant s solicitor, dealing with a Portal claim, to ensure that he captures any vehicle related damages that are additional to the original claim. The rules envisage an original claim settling with credit hire charges still outstanding but, according to this case, not where the claim form expressly indicates that there is no such claim. Credit hire companies wishing to pursue claims that will go through the Portal will need to ensure that they are in contact with solicitors handling the personal injury claim. Had the car hire claim, which was significant, been indicated on the claim form, the defendants would have taken a very different approach to the conduct of the Page 5

6 Disclaimer & Copyright Notice The contents of this document are considered accurate at the time of delivery. The information provided does not constitute specific legal advice. You should always consult a suitably qualified solicitor about any individual legal matter. Horwich Farrelly Solicitors accepts no liability for errors or omissions in this document. All rights reserved. This material provided is for personal use only. No part may be distributed to any other party without the prior written permission of Horwich Farrelly Solicitors or the copyright holder. No part may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical photocopying, microfilming, recording, scanning or otherwise for commercial purposes without the written permission of Horwich Farrelly or the copyright holder. Horwich Farrelly 2016 Page 6