QBD (Admin) (Globe J) 11/1/2012

The first and second claimant solicitors (F and W) claimed damages for assault, battery and false imprisonment from the defendant police force, and a declaration that their human rights had been breached. The third defendant solicitors’ firm (T) claimed damages for trespass and malicious procurement of a search warrant upon its premises. One of T’s clients (X) had been convicted of conspiracy to supply drugs and imprisoned. A restraint order was made in respect of his assets. A police officer (M) assigned responsibility for investigating X’s finances had obtained evidence that X owed another of T’s clients (Y) money from drug dealing, and that X would transfer property, believed to be the proceeds of crime, to Y via the creation of a power of attorney, in contravention of the restraint order. F and W were employed by T and had acted for X and Y. M obtained intelligence that F would visit X in prison to obtain his signature on conveyancing documents. Senior officers decided that M should go to prison and arrest any legal representatives who visited X, and also apply for a warrant to enter and search T’s premises under the Police and Criminal Evidence Act 1984 s.8. That warrant was granted. In September 2007 F visited X in prison with a draft enduring power of attorney, which X signed. She was arrested on suspicion of money laundering offences under the Proceeds of Crime Act 2002 s.328 and s.330. The same day, police officers executed the search warrant. W told M that F had visited the prison with a power of attorney, and M consequently formed the strong suspicion that W was also involved in the arrangement to get X to sign something that would involve money laundering offences and get around the restraint order. W was therefore arrested on suspicion of money laundering offences. Documentation was seized, although sealed pending an independent determination as to whether it included anything subject to legal privilege. F and W were questioned at a police station and released on bail, extended until June 2009, when they were notified that no further action would be taken against them. The delay had been caused by the large quantity of material recovered from T’s premises which was examined by independent counsel before being passed to the police. It fell to be determined whether (i) M had actually or reasonably suspected that F and W had committed offences; (ii) M had actually or reasonably believed that the arrests were necessary to allow the prompt and reasonable investigation of offences; (iii) the search warrant was granted lawfully and procured in the absence of malice; (iv) F and W’s rights under the European Convention on Human Rights 1950 art.8 had been unlawfully interfered with.

HELD: (1) M was undoubtedly in possession of reliable intelligence that F would visit X to obtain his signature on conveyancing documents and he had actually suspected that she had either committed or was in the process of committing offences. A reasonable man would, in possession of that knowledge, have suspected that F was becoming concerned in an arrangement within s.328 to facilitate the acquisition, retention, use or control of criminal property by or on behalf of another person. W’s comment to M when T’s premises were being searched had caused M to suspect that W had also committed or was committing the same offences, and that suspicion was also reasonable (see paras 89-90, 107, 109-110 of judgment). (2) The decision to arrest any representatives who attended X in prison was made with considerable care. The decision to arrest W came later and only after his comment about his knowledge of what F had been doing. M had actually believed that an arrest was necessary to allow the prompt and effective investigation of an offence or of F and W’s conduct, and that belief was reasonably held and not motivated by any irrelevant considerations (paras 119, 121, 129). (3) There was no defect on the face of the warrant that raised a clear doubt as to whether the application under s.8 of the 1984 Act had been lawfully made and granted. Moreover, there was no evidence that M or any other officer had acted maliciously in procuring the warrant. The police had taken care to obtain legal advice before drafting the application and during the search they had taken steps to ensure that they did not seize material that was not covered by the warrant. The warrant was not wrongly granted or, in the alternative, the Constables Protection Act 1750 s.6 applied (paras 140, 144, 151-152). (4) Since F’s and W’s arrests were lawfully justified, there had been no interference with their rights under art.8 of the Convention in that respect. The interview process had not established that no offence had been committed by F or W. It was regrettable that F’s and W’s time on bail had been lengthened as a result of the time taken to secure independent counsel’s advice on the seized material, but the enquiry had been a complex one which required careful consideration. The delay was not inordinate in the circumstances. The interference with F’s and W’s art.8 rights by the maintenance of bail was therefore justified (paras 157-161).

Judgment for defendant

Counsel:
For the claimants: Martin Westgate QC, Alison Gerry
For the defendant: Ronald Thwaites QC, Dijen Basu

Solicitors:
For the claimants: Bhatt Murphy
For the defendant: In-house solicitor

 Courtesy  Lawtel.

As is highlighted in our injury profile, anyone who is a victim of crime in England and Wales can make an application to the Criminal Injury Compensation Authority (CICA) for an award under the scheme. This scheme is funded by the tax payer to compensate genuine victims of crime.

There are as we have set out in our injury type explanatory note criteria to qualify for this award.

The award is made on a similar basis to personal injury claims valued by a Civil Court, though the scheme has its own way of calculating pain and suffering and financial losses.

There are situations where you can make an application for an award and sue the assailant. For example if you are assaulted and the matter is reported to the police and the assailant is prosecuted you can sue in a Civil Courtfor assault, battery and financial losses and also make an application to the CICA. However, if you are successful in your application to the CICA then any award granted by them will be deducted from the damages you may recover from the assailant.

An application can be rejected because of your own conduct prior to the assault/incident and/or during the course of your application. If therefore you are pursuing a claim for assault and there is some evidence that you may have provoked the assailant then your conduct would be taken into account in the award made. If the conduct is serious, the application would be rejected. In most cases the award would be reduced by a percentage.

Your conduct during the course of the application can also be taken into account. For example if you are pursuing a claim for loss of income and there is evidence that you were also receiving benefits whilst you were working, your award can be reduced by a significant percentage.

As this is a government based scheme there are appeal procedures available if you are not happy with the initial decisions. Procedures provide that if your application is rejected or you are made an award with which you consider to be too low and you have evidence to increase the award, you can within ninety days of the decision apply for the award to be reviewed.

Your application would be reviewed by a different officer. At that stage you are entitled to introduce additional evidence. CICA applications are investigated by the CICA. They obtain reports from the police if the incident is reported, medical records from your general practitioners and the hospital where you have received treatment. They in certain circumstances obtain medical evidence regarding your injuries, by appointing an independent medical expert to examine you and prepare a report on your injuries. Based on that they will make a decision on your injury and financial losses.

However, on a review you can introduce your own evidence to support your arguments on merit and/or value of the award.

If the review is not to your satisfaction and you obtain advice that it should be appealed, you can appeal to what is called the First Tier Tribunal (Criminal injuries Compensation).

You would have ninety days from the date of the review. The tribunal would consist of a qualified lawyer and two members of the public.

The appeal would be heard by the tribunal and you can introduce further evidence. On an appeal you can give evidence and introduce witnesses to support any aspect of In essence therefore your claim.

this scheme is for those who are genuine victims of crime who have suffered genuinely at the hands of an assailant and who conducted their affair honestly. The scheme would expect the Applicant to go to them with what we lawyers call “clean hands”.

Please note that there is time limit of two years from the date of the incident to make an application. You must make the application within that time, after which you would be barred from doing so.

 If you are, or know someone who may have been victims of crime and wish to obtain further information please contact Leeanne Druse or Abdul Hafezi of this office on 0207 377 0600.

We are delighted to announce that the M.A.Mission Learning Centre inBoltonis now a registered charity. We dealt with drafting of their memorandum and articles of associations and all matters arising from that with the Charity Commission to register the charity with them. We also advised them generally on how to operate an open, transparent and charitable organisation.

In the last fifteen years governments of all shapes have improved methods of giving to charities and a variety of tax exemptions.

As a charity there are benefits on income tax, value added tax and donation given to it as gift aid. Anyone donating to a charity can obtain tax refunds on their contribution and more importantly the charity is able to claim back tax at the lower or higher rate, depending upon the tax status of the donor.

We encourage religious and community based institutions to register as a Charity. If you have any queries as regards benefits of registering and how to go about doing so please contact Abdul Hafezi on 0800 3899 136.

 We agreed to represent Ms E.F on a No-Win-No-Fee basis. We took a detailed statement from her as to the circumstances surrounding the accident and obtained a report from an expert that supported our view that the width and strength of the glass in the window was inadequate and did not comply with current regulations. 

We sent a letter, known as a letter of claim, to her landlord who then passed it on to their insurers. 

In total we obtained expert medical opinions from three different specialists and in December this year (2011), we negotiated a settlement out of Court in a sum of £25,000.00. 

In addition to the compensation for her personal injury, the insurers will also pay her legal fees, VAT and other expenses, which means that she keeps 100% of her compensation. 

Whilst personal injury compensation can never replace the damaged tendon, she has finally received compensation for the negligence of her landlord that she deserves. 

If you are in a similar position or just want to discuss any area of personal injury law please then call us 0800 3899 136. Please remember that there  is a three year limitation to personal injury claims. The earlier you see a solicitor the better chance you will stand. 

Abdul Hafezi

As a matter of law, cyclists have identical duties to those of motorists when it comes to observing the Highway Code on the road. With the increase in the use of bicycles on the road and additional facilities provided by the Mayor to Londoners, there is an increasing possibility of road traffic accidents occurring and involving cyclists. In the last 4 weeks to our knowledge, there has been 2 fatal accidents on the A12 leading out of London involving cyclists.

It is common knowledge that cyclists tend to ignore the observance to the Highway Code, such as riding on the pavement, going through red traffic lights even when it is red to them and cycling across zebra crossings when there are pedestrians on it. These are all examples of negligent acts for which they could be liable and their damages reduced accordingly, even to as much as 100%.

In all common law actions a defendant can argue that the Claimant has caused or contributed to the cause of the accident. This is known by lawyers as contributory negligence.

In a recent case of Malasi v Attmed (2011), Judge Seymour QC found that the injured cyclist was 80% responsible for the cause of the accident because he had failed to stop at red traffic lights and had failed to brake in time to avoid the collision. This was so even where the taxi drive had caused the accident by excessive speed.

The actions of Mr Malasi (cyclist) is commonly observed by us on the London roads. Whilst cyclists may escape any contributory negligence when involved in accidents despite actions like the above and indeed an accident occurring at all, they ought to be careful as failure to observe the Highway Code may prevent them from being compensated at all or in full for injuries that they may sustain as a result.

If you like any further infomation onbicycle claims or any other claims please call us on 0800 389 9136

Under Section 51 of the Senior Courts Act 1981, a Court can decide who should pay the legal costs and in some circumstances this can include those who are not directly involved in the case in question.

This is particularly relevant if a person who embarked on a no win no fee claim lost the case but was unable to pay the other sides costs.  The other side could then look to see if they could recover their legal costs from another party, such as the Claimant’s law firm.  In order to successfully do this though, they would have to demonstrate that the solicitors could also be deemed to be a ‘real party’ to the claim. 

In Germany v Flatman; Barchester Healthcare Ltd. v Weddall [2011] EWHC 2945 (QB) Mr Justice Eady allowed an application made by two Defendants, for the solicitors who acted for two personal injury Claimants to disclose information as to the arrangements made for the Claimant’s personal injury claim.

Mr Justice Eady said:

(1)   That in order to succeed against the Claimant’s law firm, the applicant had to show that the solicitor had gone “beyond solicitors ordinary role and had acted as a funder of litigation”. In other words, the solicitors were not just contributing time to the claim but they were actually financing the claim.

(2)   That an Order against non parties should only be made in exceptional circumstances where third parties pursue claims for their own benefit and at their own expense, then they leave themselves exposed to be ordered to pay the successful litigant’s costs.

(3)   That third party costs Orders could be made in the circumstances where  the Defendant was “a real party” and not just “the real party”. Where solicitors pay disbursements, such as the cost of medical reports or police records, on the basis that they will be recovered from the other side if they won, but not at all from their client if they lost, then the solicitors are a “real party”. That in these situations a solicitor would basically be financing the claim themselves.

In those circumstances Mr Justice Eady concluded that a Disclosure Order was necessary to establish what arrangements for the claim had actually been made between the Claimant and his solicitor.

(4)   He concluded that there was sufficient material to justify ordering a disclosure of the information sought by the successful Defendants. However he did also comment that “any future applications for a third party Costs Order as a result would have to be considered on its own merits”.

By granting this Order, the Claimant’s solicitors would be forced to show that they had taken the case on with no adequate protection for the Claimant in case they lost the case (by not taking out any insurance cover) and that they had paid for things along the way believing that they would be paid for by the other side by winning the case.

Hafezis Comments

This case will encourage successful Defendant lawyers to apply for disclosure of the arrangement between the solicitor and the Claimant to see how the case was funded and if solicitors are providing funding. Whilst as far as we are aware, all no win no fee agreements actually state that the disbursements (extra costs, such as expert medical reports) are always the responsibility of the Claimant, I suspect many law firms operate a regime whereby if the claim fails they do not seek to recover the disbursements from their client, but pay them personally.

I suspect that where files are bought by law firms from claims management companies for a hefty referral fee, solicitors push ahead with risky cases to try and recover the cost of buying the case, thinking that they can get away with not having to pay anything out themselves if they lose.

Whilst bodies such as APIL may not be happy with this Judgement, in my view it is a judgment which is correct and if solicitors are financing cases themselves by paying these disbursements and then not recovering them at all if the claim fails, then they clearly are a real party to the claim and should be exposed to an Order for costs.

Legal Expense Cover

It is also surprising that these cases were conducted without having arranged legal expense cover for the client. This type of insurance covers the other side’s legal costs in the event of losing the case. I’d be interested to know if the losing Claimants were ever even advised of the risk of not having a legal expense cover and subsequent responsibility for the Defendant’s costs.

I believe that all clients should have the benefits of legal expense cover explained to them and the risk they would take if no cover can be bought.

Whilst we take on riskier cases it is our usual advice that we never guarantee even when we believe for example our costs are at 70/30 in the clients favor. Even 30% is a risk which should be protected against. I consider it to be negligent to act for a client without having legal expense cover in place, no matter what the odds are.

Leeanne, like her three immediate predecessors, was also sponsored and qualified with a Higher Right of Audience, enabling her, as she so wishes, to be an Advocate in all the Courts throughout the land.  Qualifying as a solicitor is no easy task and Leeanne can be proud of her tremendous achievement.

As a firm with family values at heart, I am committed to providing opportunities to young and talented individuals, to train them to be conscientious and enthusiastic members of the profession and to be a good role model.

It gives me great pleasure to announce that Leeanne will remain part of our team and will continue to provide friendly and cost effective access to resolving disputes.

All organisations particularly those employing more than five people are legally required to have a written Health and Safety Policy, to have a Health and Safety Committee and to have regular meetings of those to review each task that they are undertaking and risk assess to make sure that all reasonably practical steps are taken to safeguard their employees or visitors to the premises.

It is neither unusual nor abnormal for those visiting the sauna to take something to read with them. It is also foreseeable that from time to time the sauna is empty and there is a risk of someone leaving the paper in an empty sauna. Essentially there is a risk of fire from the sauna which is foreseeable and for which steps can be taken to reduce or avoid the risk.

Risk Assessment can be in the following terms:

1.  Put up a notice on the glass door in the gymnasium notifying members that it is dangerous to take a newspaper or magazines in to the sauna, but if they do take it with them, they should leave with it when exiting the sauna.

2. Put up a notice in the changing rooms and also at suitable locations within the gym to make sure that members are aware of the risk.

3. Highlight to the members when they join the gym that if they take newspaper/magazine in to the sauna, the risk that this carries.

4. Make an absolute prohibition to members not to take any newspaper/ magazines into the sauna.

In my view an absolute prohibition is not necessary to defend a claim provided steps 1-3 are put into place. These are what we would call an assessment of risk reducing its occurrence by taking practical steps.

The Daily Mail often has a go at the Health and Safety industry and how the conscientious  Health and Safety Officer has lead to schools cancelling day trips and immigration officers allowing non EU nationals to visitUKwithout a visa.

There is benefits of having the Health Industry. In many ways it has improved the working environment, made the work place a safer place and improved safety in public places.

In summary whilst the Daily Mail often has a go at the Health and Safety industry, it is there for the protection of the public and one that we should admire and be proud of rather than using it as an explanation for what is termed a compensation culture.

Mr Ghaith was employed by Indesit and suffered an personal injury whilst at his work. He was introduced to a well known national law firm who represented him and put his claim to his employers. The case went to the Central London County Court, where he lost.

Naturally, Mr Ghaith was disappointed and unhappy with the outcome. He wanted to appeal against the decision, but the law firm refused to act for him unless he paid their costs privately and thus were no longer willing to act on a No-Win-No-Fee basis as before. Undeterred, Mr Ghaith found us on the internet and got in touch.

We listened to Mr Ghaith and reviewed the information to hand and believed in his cause. We believed in his case so strongly that we offered to act for Mr Ghaith on a No Win No Fee basis, unlike his previous Solictors.

We obtained a full transcript of the Court judgement and have invested a lot of our time in preparing for the appeal so that he has the best chance possible to win an appeal. Before that can happen though, the Court of Appeal has to grant permission for an Appeal to be heard. The great news is that last Friday, this permission was granted. We will now present Mr Ghaith‘s case to the Court of Appeal on the basis that the County Court Judge made a mistake in applying the law to the facts.

At a time where straight-forward case handling is flavour of the month, we continue to provide legal assistance, advice and representation to all Londoners, to ensure that no stone is left unturned in getting just compensation for a just claim.

We often work on a No-Win-No-Fee basis, so if you have a claim you want to make, or even if you’ve lost a case and you think that you should not have, we will happily discuss your case with you completely free of charge. Call us on 0207 377 0877 now to get started.