The authority June 2006 - edition 6
Contents Editorial This issue of The authority is published shortly before the 2006 ALARM How green is your ASBO? – p2 Conference and at a time when local authorities face a continuing series of tough challenges. New developments come thicker and faster than Corporate manslaughter ever, and as legal professionals we are pleased to be involved at the heart of many of them. - are we making progress? – p3
Recently, the House of Lords ruled in favour of employers in Barker v St Carbon monoxide Gobain which we featured in edition 5, and in which we represented - a headache for landlords – p4 one of the successful appellants. In early May 2006 the House of Lords also heard the appeal in Majrowski v Guy’s and St Thomas’ NHS Trust, in Mediation: reject at your peril – p5 which we also acted for the appellants and which again we featured in the last edition; the outcome and its impact on employers' vicarious Transport safety in schools – p6 liability for harassment carried out by employees is keenly awaited.
How to stop the vexatious litigant In the meantime the High Court's ruling in Mitchell v Department of – p8 Transport and Mott Macdonald Limited in April this year, hailed in some quarters as building on the House of Lords decisions in Goodes v East Sussex County Council (2000) and Gorringe v Calderdale Metropolitan The Data Protection Act and Borough Council (2004) to decide that claims for damages arising out of professional opinions – p9 water on roads are not recoverable against highway authorities, and potentially saving local authorities and their maintaining agents millions The impact of employment issues of pounds in personal injury compensation claims each year, is being on personal injury claims – p10 appealed, so any celebrations are at this stage premature.
Westwood: a pathway around This edition is a mixture of new topics and old ones with a new twist. If Gulliksen? – p12 our article on carbon monoxide poisoning does not make you sit up and take notice, we hope that our take on Environmental ASBOs will. ‘Trust Schools’ The Education and Corporate manslaughter remains an area of concern. Professionals in the Inspection Bill 2006 – p14 local authority field will we hope find our advice on data protection as it applies to comments and criticisms expressed in records helpful, while there is continued pressure to resolve disputes through mediation.
As always, our partners and staff welcome the chance to discuss any of the articles in this newsletter or any other issues of concern impacting The authority is published by the marketing on public sector business. department of Berrymans Lace Mawer (Castle Chambers, 43 Castle Street, David Evans Liverpool L2 9SU) on behalf of the Partner, BLM Liverpool partnership. Printed in England by Patersons Printing Ltd. © Berrymans Lace Mawer 2006. The authority —— June 2006
How green is your ASBO? (Kent Fire Rescue Services had been called out by residents on more than 40 occasions due to illegal fires). In addition to the ASBOs (Anti-Social Behaviour Orders) must be acknowledged as ASBO, the operator received a 240 hour community punishment being (at least from a PR perspective!) one of the government's order and was fined £11,500. most successful tools in the fight against the increasing prevalence of 'yob culture' in our society. ASBOs continue to At about the same time, the London Borough of Camden make headline news as well as being welcomed as a cure for the obtained an environmental ASBO in respect of the managing ills of urban deprivation. They are widely recognised as effective director of a fly-tipping company. Indeed Camden sought to weapons in the fight against graffiti and vandalism and the encourage other local authorities to follow their lead in using struggle to tackle other anti-social behaviour. ASBOs to target fly posters and people who commit anti-social behaviour. Camden has even offered to assist other local An ASBO is a civil order which seeks to protect the community authorities in preparing their cases. Canterbury City Council also from behaviour that causes harassment, alarm or distress. These successfully prosecuted a serial fly-tipper and persuaded the orders were introduced in the Crime and Disorder Act 1998 and court to impose a custodial sentence and a two year have been available since 1999. As ASBOs are civil orders, those environmental ASBO on the defendant. receiving them do not acquire criminal records. Despite the enthusiasm of the EA and some local authorities, the ASBOs for hooligans are now commonplace, but a development in business world has questioned whether the use of ASBOs is 2005 has resulted in the Environment Agency (EA) being granted appropriate. It cannot be contested that companies that the right to apply for ASBOs to tackle environmental crimes. persistently flout environmental rules should be punished. However, it is important to distinguish those companies from The EA has welcomed this power and considers that the use of more conscientious companies which avoid environmental crime. ASBOs may well be a more effective deterrent when combined Certainly, the comparison of environmental crime to 'yob culture' with fines in preventing persistent anti-social behaviour. The is unwelcome in certain quarters but it is a stark fact that for stigma of an ASBO is seen by the EA as a useful weapon in the many companies, the imposition of fines which average just fight against environmental crimes, as well as providing the £8,500, will do little on its own to deter some companies and actual physical means to stop these crimes. directors from committing environmental crimes. Accordingly, as part of the current regime of fines and remediation orders, ASBOs Local authorities have regularly focussed on attaching ASBOs to may do more to encourage companies to take their convictions particularly in cases involving noise nuisance. environmental responsibilities seriously. Increasingly the order has been used in the fight against environmental crimes and this use is likely to widen. The EA obviously recognise that ASBOs will be a useful tool in their armoury but we also expect local authorities to take the lead The first environmental ASBO was awarded in 2005 to a local in combating environmental crime at a regional level. There is no council to stop the operator of a skip plant hire business from doubt that ASBOs are an appropriate tool to be used in relation repeatedly burning rubbish rather than disposing of it legally. to environmental crimes such as fly-tipping, noise nuisance and vandalism, and we suspect that they will also be increasingly used by local authorities to combat crimes such as the improper disposal of packaging waste and water pollution. Even if the punishment is not a sufficient deterrent, the bad publicity attracted by a company associated with an ASBO may be sufficient to have a significant effect on the companies' business practices. Camden has already said that it hopes to encourage other local authorities to follow its lead, and we suspect that other local authorities will follow in their footsteps.
Michael Salau Partner, BLM London
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Corporate manslaughter - are we suggestions that there may be corporate 'death sentences', making progress? corporate probation, remedial orders and the disqualification of directors. In 1996 the Law Commission published a report on involuntary manslaughter proposing a new offence of corporate killing. A So, progress is being made but there is still a long way to go. As year later, when the Labour party came to power, it pledged in its so often, it is a case of 'watch this space'. manifesto to take up this recommendation and in March 2005 a draft Bill was prepared. Work-related road risk
Since then the Bill has been going through a lengthy consultation Driving is one of the most dangerous work activities carried out process involving over 150 organisations, trade unions and other by employees. Up to one third of all serious and fatal road interested parties. On 20 December 2005 the Work and Pensions accidents are work-related. Committee of the House of Commons published a report recommending a number of changes. On 9 March 2006 the Although road safety is highly regulated and enforced by the government published its response to the committee report, police, the HSE - in conjunction with RoSPA (which has recently dismissing some proposals but promising to consider others. In published a guide: Managing Occupational Road Risk) - particular, the committee's suggestion that the jurisdiction for the encourages companies to look seriously at and expand their Bill be extended beyond England and Wales to Europe has been health and safety policies and procedures and to ensure that they rejected, but its suggestion that the new law should apply to cover work-related driving comprehensively. parent companies as well as to subsidiaries is being considered. The HSE, Department for Transport and charitable organisations It is almost 10 years since the new law was proposed and the are putting pressure upon the police to investigate and research government is finally making progress. There is pressure for the work-related road accidents. This has resulted in a growing Bill to be finalised before the end of the 2006 Parliamentary number of police forces around the country automatically looking session but there has so far been no commitment to this. behind the circumstances of a death on the roads and considering whether corporate manslaughter charges may be brought. The new Bill proposes replacing the current test (identifying an individual within a company who, through decision making and The dangers of driving include: actions, can be guilty of gross negligence manslaughter) with a new test of 'management failure'. Tiredness Excessive speed Whilst it will still be possible for individuals to be prosecuted for Drink manslaughter if they have been grossly negligent, the police will Drugs be looking into the practices and procedures which a company Adverse weather conditions. has in place and how they are implemented by its senior managers and directors. On site accidents can be caused by a lack of designated pedestrian routes, maintenance of roadways and a lack of road markings and The 'gross' element of the current test will remain. To be signs (for additional information, see pages 6 - 7). The first and considered criminal, management failure which causes death most important step towards reducing these risks is accurately to must be conduct which falls far below that which can reasonably assess them. Risk reduction measures should then be incorporated be expected of the organisation under scrutiny. into existing health and safety management systems, staff must be trained and compliance with the systems monitored. The current test is clearly causing the Crown difficulties. It is almost impossible, within the complex management structure of The Health and Safety at Work Act 1974 provides the main a large organisation, to find an individual who is culpable. This statutory framework but the Road Traffic Acts 1988 and 1991 and task is far easier within a smaller company; in such cases a the Road Vehicle (Construction and Use) Regulations 1986 are number of prosecutions have been successful. also relevant. There is pressure on the government to create a new offence of causing death by careless driving but there is The scope of the proposed new law is also being debated. Crown currently no indication that this will happen. It is clear that immunity is likely to remain for the innermost government corporate manslaughter charges will be and are being considered departments but will be limited. NHS boards will be open to where management failures (either in not having a system at all scrutiny, and it is not currently anticipated that police authorities or in not ensuring that it is adequate and implemented) are a will be exempt. cause of work-related road deaths.
In terms of penalties (as well as unlimited fines) there have been The cost to employers of work-related road deaths and injuries is estimated to be £4.4 billion per year. The cost of implementing
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adequate safe systems of work is, in comparison, very small and the pressure from the police and organisations such as RoSPA to keep road risk at the top of the agenda is likely to continue.
Zoe Mills Solicitor, BLM London
Carbon monoxide - a headache for landlords
Carbon monoxide (CO) is a colourless, odourless gas with no inherent warning properties, produced by the incomplete combustion of naturally produced fuels such as gas and oil. It causes serious problems for landlords, is a real risk to the health of their tenants and in some cases will kill.
A landlord has a statutory obligation to check all gas appliances in his properties annually. This duty arises from the Gas Safety (Installation and Use) Regulations 1998 SI 1998/2451. Regulation 36(2) states that every landlord should ensure that gas fittings, that on the balance of probability he could not have known of appliances and flues are maintained in a safe condition so as to the defect. A landlord's failure to carry out the statutory annual prevent the risk of injury to any person who is lawfully occupying gas inspection will greatly assist the tenant in proving breach of or visiting a property. The regulations also set out stringent rules duty regardless of whether or not he first complained of a defect. as to how appliances are to be fitted into properties and a breach is a criminal offence. What can a landlord do to avoid liability altogether or provide some defence against a civil claim? These statutory duties alone place an onerous duty on a landlord but with the corresponding civil duties the problem is compounded. The first and most important step is to put in place an effective policy to ensure that annual inspections of gas appliances are Section 11(1)(c) of the Landlord and Tenant Act 1985 (LTA) places carried out in accordance with his statutory obligations, and an absolute duty on the landlord to eliminate the risk of carbon where access is not granted, that he takes steps to gain access. monoxide poisoning from a faulty gas appliance. While working closely with clients, the BLM housing team has found that the most effective way (if access is not given after In addition, s 4 of the Defective Premises Act 1972 (DPA) states three attempts) is to apply for an injunction to gain access. The that the landlord owes, to all persons who might reasonably be injunction process requires strict legal procedures to be followed. expected to be affected by defects in the premises, a duty to take Once the injunction is granted, compelling the tenant to arrange reasonable care to see that they are safe from personal injury or an appointment and permit entry, a tenant failing to comply will from damage to their property caused by a relevant defect. For be in contempt of court. In practice many landlords find that s 4 duties to arise there must first be a corresponding duty to once injunction papers have served, tenants are persuaded into repair under s 11 of the LTA, and a relationship of landlord and co-operation by the prospect of legal action. The alternative tenant. Unlike s 11 claims however, a landlord cannot rely on the method, applying for a notice seeking possession, is slow, fact he has not been notified of a defect by the tenant. In a expensive, and less effective. personal injury claim under s 4 of the DPA, the question is whether a landlord knew or ought to have known of the defect, For a local authority, another way to gain access is to argue that ie constructive notice can be imputed to a landlord. an unchecked property is a health risk waiting to happen, in other words a statutory nuisance under s 79 of the Environmental This widens the duty on the landlord: if he fails to carry out the Protection Act 1990 (EPA). Here an environmental health officer annual gas safety inspection on the property, a judge is likely to would serve an abatement notice on the 'person responsible for find that the landlord was aware of the possibility of carbon the nuisance' ie the tenant, giving 14 days to comply. This is a monoxide, as if he had carried out that inspection at the relevant lawful way of gaining entry by force and is also largely free of time. Section 4 has in effect raised a presumption that the charge, as the entry warrant is the criminal courts' response to an landlord knew of the defect and that he should be found liable offence and not a costly action in civil law. for breach of duty. It is up to the landlord in his defence to show
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Landlords should form a close relationship with their contractors Mediation: reject at your peril carrying out the gas inspections to ensure that if they face a civil claim, these contractors can be relied on to provide witness Public authorities and their legal advisors neglect mediation (and statements to prove that there has been no breach of duty, or Alternative Dispute Resolution (ADR)) at their peril. The Court of that there were access problems. Appeal has given its stamp of approval to mediation and confirmed that, 'it is now the legal profession that must become Good record keeping is essential, particularly regarding fully aware of and acknowledge its value' (Birchell v Bullard complaints from tenants. Such records may not provide a full (2005) EWCA Civ 358). Indeed, amendments to the pre-action defence but will be useful to show contributory negligence by protocols have entrenched mediation and seek to ensure that the tenant, reducing the level of damages paid significantly. In parties give proper consideration to the possibility of ADR before the case of Sykes v Harry (CA 15 February 2001) contributory litigation is pursued. negligence was allowed at 80% in favour of the landlord, based on the full history of the tenant's failure to report or allow access. From 6 April 2006 the latest amendment to the Civil Procedure Rules (CPR) introduced a standardised approach to ADR for all Additionally, in a litigated case a landlord should obtain the protocols and practice directions, in effect covering all potential tenant's medical records and put questions to the tenant's litigation. The changes require parties to consider whether ADR medical expert. In certain serious cases, it may be advisable to would be more suitable than litigation and, if so, which type of obtain additional medical evidence to attempt to show that the ADR would be suitable, warning that the court may require tenant's symptoms could be due to medical complaints unrelated evidence that ADR was indeed considered. For the first time, in to the alleged carbon monoxide poisoning eg ME, fatigue the CPR it is specifically recorded that 'the courts take the view syndrome, glandular fever and other respiratory problems. that litigation should be a last resort' and that failure to observe the protocols must be considered when dealing with costs. The housing team at BLM has been working closely with clients drafting policies to ensure that adequate gas safety inspections The CPR make it clear that the parties cannot be forced to are in place, and acting for landlords, securing court assistance to mediate or to enter into any form of ADR. However, it is also clear gain access. In addition, the team acts for insurers of housing that the court's 'encouragement' may be robust and costs clients, defending civil claims for carbon monoxide poisoning. For sanctions will be used where the other party has acted all these clients, claims have dropped significantly and the costs unreasonably in refusing ADR. and damages attributed to personal injury claims have been greatly reduced. In turn this has a direct impact on the annual In Daniels v Commissioner of Police of the Metropolis (2005) EWCA claims spend and allows for a corresponding reduction in Civ 1312, the claimant's action against the Commissioner failed. insurance premiums. Having an effective gas safety policy and Since the defendant had rejected the claimant's attempts to compliance with statutory obligations directly affects the housing negotiate, the claimant sought to avoid paying the star rating. Commissioner's costs. However, it was held that a public body routinely facing unworthy claims from employees was entitled to The best advice we can give you is to put your policy in place now. take a stand and to contest them, and that the courts should be slow to characterise such conduct as unreasonable even if the costs were disproportionate to the value of the claim. Sarah Mansfield Partner, BLM Liverpool
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At the same time, the courts have held that one party's refusal to For those who consider that court mediation schemes are ineffective mediate until the issues are clear should not necessarily be and that the main dispute resolution organisations are too criticised. In Wethered Estate Limited v Davis (2005) EWHC 1903, expensive, an alternative is to seek out accredited mediators for fixed the claimant refused the defendant's suggestion of early time mediation (say three hours) which helps to focus all parties and mediation because the issues had not become clear and suggested keep costs to a minimum. In practice, some mediators are more that the attempt to mediate should follow the issue of effective than others. Speaking face-to-face with the claimant may proceedings; a defence and part 20 proceedings. The judge present a valuable opportunity to limit their expectations and deemed the claimant's approach to be justifiable and refused to progress the claim towards a satisfactory conclusion. impose costs sanctions against the claimant for the delay in agreeing to mediate. It should be noted that the judge found 'very Mediation is now a permanent feature of our legal system and is peculiar circumstances' which justified the refusal to mediate. to be embraced as an effective and efficient means of attempting to resolve disputes. If used wisely, the advantages for public Undoubtedly, legal advisors should routinely recommend authorities are undeniable and savings to the public purse will be mediation to their clients. But the CPR have also identified substantial. If rejected, costs and criticism may be significant. alternative courses to resolution. The protocols list discussion and negotiation, in addition to 'early neutral evaluation by an independent third party'. Such neutral evaluation is little used (at Jim Sherwood least at present) but envisages, for example, a lawyer experienced Partner, BLM London in the relevant discipline acting as an arbiter and providing recommendations as to how the matter can be resolved.
It must be remembered that mediation or ADR is not the only Transport safety in schools formal recourse if traditional informal avenues do not succeed. The judiciary have made it clear that informal discussions and A recent conference organised by Gwynedd County Council, efforts to resolve disputes are equally relevant when costs come supported by the Welsh Local Government Association and by to be assessed. What counts is the intention of the parties and BLM, and with a strong HSE presence, highlighted the issue of their mindset in attempting to resolve issues, narrow points in transport safety in schools. Generally, workplace transport is the dispute and genuine efforts to avoid the costs of litigation. second highest cause of deaths at work, and the issue is one of particular concern in schools. During a recent four year period So the starting point will often be a telephone conversation to set there were 104 transport-related accidents involving children on the other side right as to the merits of their claim, or an informal school premises reported to the HSE, two of which were fatal. face-to-face meeting. When these negotiations fail or are considered wholly inappropriate, proposing mediation may be the best option Because of the number of recent serious and fatal accidents the and could provide the means to break through any issues. management of transport in and around school premises has become a high profile issue. The HSE has already visited half of It could be in a public authority's interest to propose mediation the Welsh local authorities to look at how school transport is at the earliest stage of a case which shows signs of proceeding to being managed, with its primary concern being on site risks, and litigation (irrespective of the nature of the claim involved) and is planning to visit the remainder this year. There is every reason subject, where appropriate, to consultation with insurers. to believe that this initiative will extend beyond Wales. Inevitably, there may be cases where a point of law is involved which requires testing or pressure for mediation may come from The findings of the HSE review so far are that simple, inexpensive a claimant with a weak case. In those cases, rejection of measures, such as physical segregation, can make a big difference. mediation with a detailed explanation is likely to find favour with Some reasonably practicable measures, however, cost much more the court (see Halsey v Milton Keynes General NHS Trust (2004) and may need to be prioritised. In addition, it is often necessary EWCA Civ 576). for effective action to have a multi-disciplinary approach, involving the police, highway/local authorities and schools. Public authorities are aware of the tactics adopted by some well known claimant firms and so mediation may provide a forum for The importance of managing this issue effectively from a health forcing them to speak directly to their clients - sometimes a and safety perspective is clear. If it is not done properly, local valuable and rewarding exercise. In cases where there may be a authorities can expose themselves to potential criminal liability, liability, the opportunity to handle a claimant's expectations may potential civil liability, reputational damage (headlines such as be useful. However, it may be necessary to be wary of part 36 'School Crash Horror' and 'Outrage Over Cars On School offers or payments into court prior to a mediation. Claimants, Grounds', (examples from a recent case) tend to make both and possibly mediators, may well see such offers as no more than officers and elected members understandably twitchy) and a starting point for negotiation at the mediation. A more effective substantial direct and indirect cost. tactic may be to withhold from any offer until negotiation begins.
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A trawl of the HSE website shows a considerable number of The preferred approach of the HSE is the elimination of risk. Any improvement notices which have been issued to local authorities interaction between pedestrians and vehicles carries the risk of and schools over the past three years arising out of failure to potentially severe injury or even fatality. If risk cannot be comply with their legal duties in relation to transport in and eliminated, authorities have to take all reasonably practicable around schools. measures to reduce risk by the use of physical controls.
The Health & Safety at Work Act 1974 obliges those responsible In addition, there is an obligation, sometimes overlooked, under for schools to ensure the health and safety of not only employees regulation 5 of MHSWR to monitor and review preventive and but others not employed (eg children at school). Under the protective measures. Management of Health & Safety at Work Regulations 1999 (MHSWR), schools have to assess the risks to both employees and Failure to meet these obligations is likely to result in improvement others affected by transport activity relating to school sites. or prohibition notices from the HSE, and could lead to prosecution.
In addition, under the Workplace (Health Safety and Welfare) While the HSE have generally, as a matter of policy, refrained from Regulations 1992, regulation 17, workplaces, including schools, prosecuting schools where problems have been uncovered have to be organised so that pedestrians and vehicles can relating to the organisation of transport on and near the circulate safely. premises, reasoning that a hefty fine deducted from education authority funds does not serve the public interest, there can be So those responsible for school safety have to assess the risk from no guarantee that the HSE will continue to adopt a lenient vehicle movements on the premises and manage those risks in approach; indeed the HSE have indicated that if problems are line with current workplace transport guidance, paying particular detected and not dealt with, promises to deal with problems are attention to segregation, marking and lighting. not kept or initiatives are undertaken but then lost sight of, prosecution will be likely to follow. The duty does not stop there. It extends to assessing the risk of vehicle movements immediately outside school premises Equally, accidents involving children or young adults can result in associated with school activities, such as staff arriving and leaving expensive civil claims, including allegations of head injury and work, school buses delivering pupils, delivery vehicles and taxis. traumatically caused intellectual deficit which can be difficult to This issue can be particularly acute with rural schools where there disprove, and very substantial future loss and care claims is frequent use of off site transport such as taxis. requiring substantial provisions to be made.
The risk assessments undertaken must, as with all risk assessments, Local authorities thus have every incentive to avoid these problems. be suitable and sufficient and in relation to schools it is particularly important that they take into account the inexperience, lack of David Evans awareness of risk and immaturity of school children. Partner, BLM Liverpool The authority —— June 2006
How to stop the vexatious litigant a making any further application in current proceedings (limited restraint order). Anyone who has regular involvement with the civil justice process b issuing certain claims or making certain applications in or with the wider public will have had some experience of the specified courts (extended civil restraint order). vexatious litigant or serial complainer. c issuing any claim or making any application in specified courts (general civil restraint order). Vexatious litigants are individuals who repeatedly pursue applications and actions without substantive merit. They cannot The court is required to consider making such orders on its own accept the failure of a claim and will simply not take 'no' for an motion whenever it strikes out a statement of case or dismisses an answer. Repeated secondary litigation is a core feature of their application where it is without merit. The court must record that activity and is designed to frustrate and harass their opponents. fact and consider whether a restraint order is appropriate. The position on appeal is similar. If an application for permission to Such litigants are usually without legal representation and can appeal is dismissed or a notice of appeal is struck out without merit cause considerable expense and inconvenience for their the court must record that fact and consider whether to make a CRO. opponents, their lawyers and sometimes the lawyers who were foolish or unlucky enough to represent them in earlier litigation. The duty is to consider - not necessarily to make the CRO. There They can take up a disproportionate amount of court time and need to have been at least two applications made in the money. Laws J said in A-G v Edbert 7 July 2000: proceedings before a limited CRO can be made. For the extended and general CROs there needs to have been the 'persistent' issue The real vice here, apart from vexing (E's) opponents, is that of applications/actions without merit. scarce and valuable judicial resources have been extravagantly wasted on barren and misconceived litigation, to the detriment The extended and general CRO can cover the court making it and of other litigants who have real cases to try. any lower court. These orders should not exceed two years duration at least in the first instance. Subsequent two year These claimants are a problem for all involved. There is no escape. extensions are possible. The general CRO does not need to be They will look to involve those who had some involvement, however restricted to proceedings or applications against particular people slight, in their perceived wrong. Public authorities seem to attract or regarding particular facts. particular attention partly due to the work that they do and because they often form part of the process which produced the adverse A person or organisation facing a serial litigant does not have to outcome or decision which the vexatious litigant cannot accept. wait for the court to make one of these orders, but can apply for Perhaps it is also because public authorities have evolved generous one under 3 CPD 5.1. appeal and grievance processes that can be exploited by an aggrieved individual with time and the requisite procedural/legal The use and threat of the CRO have proved a useful addition to the knowledge. Public sector workers present an easy target as do the armouries of the court and those harassed by vexatious litigants. professionals who try to deal with the vexatious litigant. They have also proved more useful and less problematic than the existing powers under s 42 of the Supreme Court Act 1981. This Many of these claimants are able to apply for fee exemptions and section empowers the court to make a civil proceedings order on are not worth (at first blush) pursuing for adverse cost orders. application by the Attorney General but only where the litigant has: This places a burden on the wider public purse. habitually and persistently and without 'reasonable ground' So what can be done to prevent or restrict the activities of these instituted vexatious civil proceedings or applications. individuals? Individual strike-out applications may slow them down but will not stop the habitual litigant. Something more is The need to involve the Attorney General was a complication and required to stop them. The Court of Appeal took the opportunity the restrictive terms allowed litigants to argue that the new to do something about this troublesome behaviour in Bhamjee v proceedings or application were on 'reasonable grounds'. Forstick & Ors (no2) (2004) 1 WLR 88. The court reviewed, renamed and extended its powers to grant injunctive relief It can be counter-productive to attempt to buy off these litigants. against the vexatious litigant. In particular, Civil Restraint Orders Money is often not their goal and payment will only fuel their (CRO) in distinct forms were created. future litigation activity. It is important that vexatious litigants are tackled when the real scope of their ambitions is realised. This The decision in Bhamjee was further implemented through may mean a short term burden for the authorities involved and amendments to the CPR (Civil Procedure (Amendment and the professionals representing them but we should not shy away Amendment No2) Rules 2004). Under CPR 3.11 (and the from asking the court to look at and restrain vexatious conduct. accompanying Practice Direction 3 CPD), the court can make an order restraining a party from: Jeff Wale Partner, BLM Southampton
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The Data Protection Act and The Commissioner recommends noting clearly on the record that professional opinions a challenge exists.
Employers, medical professionals, teachers and social workers 2 Adequacy and relevance routinely record professional opinions. It is entirely understandable in the current climate that such professionals will The Act requires personal information to be sufficient for its be concerned about falling foul of the Data Protection Act 1998 purpose and not to include irrelevant material. (the Act), particularly when it is inevitable that there will be occasions when they will express concerns about or criticisms of An individual cannot demand that an opinion be deleted because third parties who may disagree with those views and wish to he considers that it reflects irrelevant information or does not take challenge them. into account information he considers is important. However, the Commissioner considers that where an opinion is recorded it The Information Commissioner's Office produced important and should contain enough information to allow a reader to interpret helpful guidance on this issue in February 2006. The notes offer it correctly. assistance to professionals in relation to what is recorded in the first place and to challenges to that record. For example the date, name and position of the author should be made clear. If an opinion is likely to be controversial or very The Information Commissioner's Office has indicated that when sensitive or would have a significant impact when it is used or an opinion is recorded it is good practice to: disclosed, it is even more important to explain the circumstances or evidence upon which it is based. Make it clear that it is an opinion. The record should show who gave the opinion and when. Where a record refers to other material, it is important that there If possible, provide contact details for the person is enough information to allow this material to be traced eg a concerned. social services record. Structure the record so that if someone objects to its accuracy, their view or challenge can be included in 3 Duration such a way that it is given proper weight. Have a records policy that lays down the criteria that The Act requires that personal information should not be kept should be considered for continuing to keep the any longer than is necessary unless there is a valid reason keep a information or, where appropriate, specific retention comprehensive record. periods for certain categories of information.
For any professional, these are sensible risk management practices which may also strengthen their position in relation to the Act.
The guidance deliberately avoids expressing any view on the content of the opinion concerned. However, it provides a number of pointers on the standards that should be adhered to:
1 Accuracy
The Act requires personal information to be accurate and, where necessary, kept up to date. The Commissioner has indicated that this standard will be met if a record accurately reflects the professional opinion. The Act cannot be used to challenge a professional opinion on the basis that it is inaccurate in the sense that, for example, another person or another practitioner has a different opinion. However, if there is factual inaccuracy within the opinion then that can be challenged.
Any challenge to the factual accuracy or reliability of an opinion can be recorded alongside the opinion. Wherever possible, it is important to maintain the original records.
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The Commissioner has accepted that organisations and The impact of employment issues on practitioners will need to consider which information is adequate personal injury claims for the record and their own purposes. An increasingly common factor in local authority personal injury The Commissioner has given some specific examples of good and claims is that they are complicated by employment issues and the bad practice. involvement of the authority's occupational health department. For example, issues may arise where: Example 1 the claimant's return to work after his/her injury has not A patient gets a copy of his medical file from his GP and disputes been well managed. an opinion recorded in it. The patient also provides convincing evidence that the opinion includes incorrect factual information. redeployment, if attempted at all, has been unsuccessful. Good practice the authority has not made suitable workplace The surgery explains that the record has to be kept as a true adaptations to enable the claimant to return to work. record of the doctor's professional opinion but agrees to include the patient's comments clearly on the file. The correct factual most significantly - the authority, as a last resort, information is recorded but a record of the error may continue to decides to retire the claimant on the grounds of ill health. be held to explain possible unforeseen consequences. Common features in such cases are that the authority's Bad practice occupational health department will invariably become involved and that the authority has to have regard to employment The surgery refuses to record the patient's objections to the legislation. These features will impact upon the quantum of the opinion and only notes the factual inaccuracies. personal injury claim.
Example 2 Of particular significance is the Disability Discrimination Act 1995 (DDA). Despite having been in force for nearly a decade, the Parents get a copy of the social work file about their child. It provisions of the DDA are often overlooked by managers which contains information about them that they consider does not give can result in expensive employment claims and staff being under a complete picture of the family circumstances. utilised. The DDA applies to any employee who has:
Good practice …a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out normal The social work department records the parents' concerns about day-to-day activities. the opinion and adds any other relevant information to the child's record. This definition is sufficiently wide to cover a bad back on the one hand or what are often referred to as 'hidden' disabilities such as Bad practice anxiety and depression on the other. In addition to the obligation not to discriminate against disabled people when considering No action is taken. The parents remain concerned about the recruitment, promotion and dismissal, there is also an obligation adequacy of the opinion, who it might be disclosed to and how it on employers to consider 'reasonable adjustments' to the might affect their child's welfare. working environment and practices to reduce the disadvantages an employee may face due to their disability. This is crucial if the Conclusion disability is the subject of a personal injury claim.
It is increasingly common to find that claimants initially try to The following recent cases we have dealt with demonstrate how obtain disclosure of files and then seek to challenge the views these issues impact upon claims. expressed in those files. This helpful and supportive guidance from the Information Commissioner's Office is welcome and it is in the interest of all professionals to be aware of and act upon it. Example 1
A claimant returned to work after major surgery. As he was Tim Smith struggling with shift patterns he requested a change in the hours Partner, BLM London worked from afternoons to mornings. The request was denied by
page 10 Berrymans Lace Mawer The authority —— June 2006
his manager for fear of how his colleagues would react. Whilst A further dimension in the co existence of personal injury and working one afternoon the claimant suffered an injury to his back employment issues can be seen in cases involving stress, which he claimed was caused by having to work the later shift; he harassment and bullying. Initially claims involving stress were alleged that the effects of his previous surgery were more brought as personal injury actions. There has, however, been disabling later in the day. A successful claim for personal injury increasing use of the Protection of Harassment Act 1997 (the Act). was made and the claimant did not return to his employment. Majrowski v Guy's and St Thomas' NHS Trust (2005) (currently the The court accepted the claimant's allegation that the authority subject of an appeal to the House of Lords) which has raised had subjected the claimant to an unsafe system of work and this interest in the Act and is changing the way in which claims have was the cause of his injury. It was found that whilst the system of been brought. Claims brought for personal injury have to provide work was not unsafe to other employees, due to his medical evidence of a specific injury whereas 'anxiety' is sufficient under condition it was unsafe for the claimant. the Act. An employer may also be completely unaware of the harassment which need not be foreseeable for the employer to be While the initial failure to make adjustments may not have liable under the Act. Employers can be vicariously liable. If one prevented the injury, it was clear from the evidence that the employee is harassing another, the employer can be held working relationship with the authority had broken down. This responsible for this even if unaware of the offence. apparent lack of flexibility in turn acted as an encouragement to pursue a claim against the authority. The importance of training This development is ominous for local authorities as it extends the personnel to deal with and to be aware of the relevant legislation liability of employers by allowing harassment claims that fall short and procedures cannot be overstated. of negligence.
On a practical level although employers are aware of the need Example 2 to monitor stress, they are often unsure just what is meant under the DDA by ‘reasonable adjustments’, often envisaging The claimant worked in a skilled role as a mechanic and following major structural changes. Much, however, can be achieved an amputation of one of his fingers, he was re-deployed in the simply by clear communication with employees to gain a role of a refuse collector. Medical evidence suggested that better understanding of the physical and non-physical following surgery he was fit to be transferred back to his original obstacles they face. position. Unfortunately, however, occupational health procedures prevented this and a claim for personal injury was made. An It is in a local authority's interest as an employer to manage an effective dialogue between the employee and occupational health injured employee effectively as, even without the financial burden might have allowed him to move back to the role for which he of a claim, a stressed or injured worker is unlikely to be was trained. Additionally, co-ordination of medical, employment productive or easy to work with. and occupational health issues would have significantly reduced costs as the manual job commanded a lower salary with no Ultimately, local authorities need to reduce personal injury claims opportunity to earn a bonus, leading to greater damages being to the minimum achievable and with any such claims, take a co- sought through his personal injury claim. ordinated approach to potential complications due to employment issues.
Example 3 Chris Coughlin In this case, the driver in her mid 30s suffered a shoulder strain Partner, BLM Leeds and a decision was taken to offer her ill health retirement. Medical reports subsequently obtained by the defendant indicated that six months post-accident, her injury had cleared up completely. The drain on the pension fund of early retirement is all too clear and this is a case where effective early dialogue with occupational health might have resolved the issues more thoroughly. Had detailed enquiries been made of the occupational health department as to the precise nature of the injury set against the demands of the job, a more effective assessment could have been made. Further, alternative job opportunities might have been identified. This example illustrates the potential conflict in the medical evidence between the occupational health doctor and the defendant's nominated (and often more experienced) medical expert.
Berrymans Lace Mawer page 11 The authority —— June 2006
The claimant initially sued Canterbury City Council (CCC). The Westwood: a pathway around Gulliksen? council owned the land on which the estate was built and there was evidence that it assumed responsibility for maintenance in The decision made by the Court of Appeal (CA) in Gulliksen v that area. She claimed CCC was in breach of its duties under the Pembrokeshire County Council (2002) was potentially significant Occupiers Liability Act 1957. She later amended her claim to add for all highway authorities in England and Wales as it stated that Kent County Council (KCC) as a second defendant, claiming most paths in housing estates constructed by local housing breach of the duty to maintain the highway under s 41 of the authorities should be regarded as adopted highways, and that Highways Act 1980. KCC brought a Part 20 claim against CCC housing estate roads and pathways (which had previously been seeking an indemnity/contribution. maintained by local housing authorities) might be maintainable by the local highway authority. The financial effect was The arguments acknowledged by Sedley LJ when he said: KCC argued that although the path was used as a route from houses the answer may have significant implications for local to the car park it could not be properly be described as a highway. authorities throughout England and Wales. To succeed, CCC had to establish the footpath was a highway It is a decision which many highway authorities felt was unjust and argued that the path was one over which the public was given the number of private housing estates in the UK. That was clearly intended to have right of way and that Gulliksen applied. certainly the view taken by Kent County Council in Westwood v Kent County Council & Canterbury City Council. Despite the fact that CCC owned the land, CCC therefore maintained that the area where the accident occurred was The background maintainable by KCC as the highway authority.
Mrs Westwood fell when her foot caught on a footpath which The housing estate had been built by CCC's predecessor in the was missing a kerbstone while walking through a housing estate early 1970s. The estate comprised a number roads and footpaths. in Whitstable. The footpath fringed a car park adjacent to a row All of the roads had been adopted by KCC, although not all at the of shops and was only a flagstone (approximately 1.2m) wide. same time. In addition, many of the footpaths had been adopted. Parked cars overhanging the path further reduced the width, Regular inspections were carried out on the adopted roads and impeding the ability of pedestrians to pass. footpaths and appropriate maintenance undertaken.
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However, the area where the claimant fell was unadopted and The fact of dedication is determined on all the evidence. therefore not inspected or maintained by the highway authority Use by the public is evidence but not conclusive. Any (KCC). presumption of dedication may be rebutted.
CCC accepted that there was an active system of adoption in The nature of the area where the path is situated may place, and indeed CCC's housing department was in the same support a presumption of dedication. If the path leads building as the highway authority officers and so had full access nowhere this may rebut the presumption of dedication, to highway records to check on adoption limits. but it is still possible that a cul-de-sac is a highway.
This pro-active adoption process was in stark contrast to Gulliksen If it can be shown that the owner of the land had no as Pembrokeshire County Council (PCC) had no policy of adoption intention to dedicate, an inference unfavourable to him in place. In fact PCC accepted that the footpath in Gulliksen was may not be drawn from the fact that the public had regarded by virtue of s 31 of the Highways Act 1980 as dedicated by been permitted to use it. long and uninterrupted use as a public right of way. On considering the facts the judge took the view that the Creation of a highway at common law can happen where there footpath in question was considerably narrower than the adopted has been express or implied dedication by the owner of the land footpaths - which did not assist CCC's arguments - and that it and acceptance of that right by the public. Where the public have might not offer the quickest route to the shops. used a route for a period of 20 years it is now commonly accepted that it has been dedicated as a highway. For dedication The judge held that having applied the tests/principles in and acceptance to arise, the land in question must have the Halsbury on definition of a highway and on the evidence, the area physical attributes to enable it to be categorised as a highway. where the accident occurred did not have the necessary attributes This was the case in Gulliksen which meant the footpath was or characteristics of a highway. Even if he was wrong on that deemed and accepted as a highway. point, there was no evidence of an intention to dedicate it as such. He stated that if CCC thought the footpath should have In Westwood, KCC argued that there was no evidence of express been adopted, it should have raised the issue with KCC. He dedication. The evidence was unclear and certainly CCC therefore decided in KCC's favour. presented no direct evidence from residents on the housing estate to confirm one way or the other. Whilst Westwood deals with a fairly narrow point of law, it emphasises the need to consider the physical attributes of the Since, in KCC's view, the footpath where the claimant fell was not location of an accident. It would have been easy to take an early a highway, it argued that the decision in Gulliksen could be view of the argument put forward by CCC and to have accepted distinguished from Mrs Westwood's claim. the case put by them.
The decision The principles of dedication and acceptance in highway law being required before a highway is adopted by the relevant The county court judge on 26 August 2005 held that the fact of highway authority (resulting in a highway being maintainable at adoption by KCC was not definitive, and the court should view public expense) appear to have been overlooked in Gulliksen. matters in the round to determine whether the footpath was a highway. That the public had a right of way, KCC's view that it Ultimately, given the right set of circumstances, perhaps there is was not a highway (and did not treat it as such) and that CCC scope to challenge the judgment of Sedley LJ in Gulliksen. had not previously considered or represented to KCC that the footpath was a highway, were not determinative factors. Ian Sheppard The court had to review and consider a number of principles: FILEX, BLM London
The intention to dedicate may be expressed in words or writing but is more often a matter of inference.
Use of a path by the public is sufficient acceptance and there is no need for the path to be formally adopted by the highway authority, although proof of adoption may be evidence of acceptance by the public.
Use by the public may be sufficient evidence to infer dedication.
Berrymans Lace Mawer page 13 The authority —— June 2006
'Trust Schools' The Education and Ofsted's expansion (the 'Inspection' part of the Bill) Inspection Bill 2006
Ofsted was significantly expanded by the Education Act 2005 to This Bill, described as 'pivotal' by the Prime Minister, received its cover childcare and youth provision. It is expanded again by this third reading in the House of Commons on 24 May 2006. It now Bill, merging the 9 separate children's service inspectorates listed moves to the House of Lords and will receive Royal Assent before in the Children Act 2004 into one integrated service, effective the end of the year. It will shape the delivery of education in our from April 2007, the Office for Standards in Education, Children's schools and signals the end of the current Local Education Services and Skills. The Ofsted brand name remains2. Authority (LEA) for decades.
The legislation entered Parliament as a White Paper on 25 Trust Schools October 2005: Higher Standards: Better Schools for All. Trust Schools have proved extremely controversial, provoking a Our prediction was that the Extended School model3 would bring significant rebellion by Labour back benchers, because the a revolution in the delivery of community children's services by proposals are revolutionary. schools becoming independent of the LEA. The Children Act did not create a mechanism, but this Bill does - the Trust School. This article focuses on the controversial issues surrounding 'Trust Schools', but the Bill1 also contains many less contentious but There are three key areas of controversy. very significant proposals. 1 Admissions policies. In brief: 2 Independence from LEA. 3 LEA's new role. Non-Trust School aspects of the Bill There was initial fear that freedom over admissions policies would 14 - 19 year olds and the vocational curriculum reintroduce grammar schools by the back door. It was not appreciated that 25% of state schools already set their own School children attending Further Education colleges to follow policies (Voluntary Aided Schools; Foundation Schools; vocational courses. (Potentially changing the legal landscape for Academies; etc.) and Trust Schools would follow suit. However, colleges). the Bill now tightens up the rules on admissions policies.
School travel Trust Schools are described in the Bill as 'Foundation Schools with a foundation'. Existing Foundation Schools are actually a low income families to receive free transport to the 3 Grant Maintained (GM) Schools renamed when the Labour nearest schools rather than just the nearest, as applies government drew them back into the fold. They retain most of currently. their original powers and independence. The key difference is that GM schools were part of the Grant Maintained Schools Trust. b to pilot innovative transport options such as yellow buses. Therefore the full Trust school concept would see every school in the country being the equivalent of a Grant Maintained School of School food old. In addition, groups of primary and secondary schools are encouraged to 'federate' under one governing body; and one The 'Jamie Oliver factor' to regulate the quality of school meals. single budget. If the other children's services such as social This links to the 'healthy schools' movement and the 'Children's services, education welfare, community policing and medical Food Bill'. provision are added in, the Extended School model is fulfilled. All the children's services for an entire community run as a single Behaviour discipline and exclusions organisation, independent of the wider local authority.
Specific responsibilities for parents, strengthening parenting The White Paper proposed LEAs were 'to promote choice, orders; and 'for the first time, a clear statutory right for school diversity, high standards and the fulfilment of every child's staff to discipline pupils' - one for the lawyers. potential', but their service delivery role will be devolved. Furthermore, 50% of a council's expenditure is on schools. If all
page 14 Berrymans Lace Mawer The authority —— June 2006
would then empower separate 'parishes' or other 'sustainable communities', with radical change to the role of local councils. The parish or community will handle service delivery, not the council. The local authority's strategic role will be to commission services through local priorities within the regional framework.
The remodelling of the nation's police force echoes this regional framework. Most regions are to have a single force, sharing borders with local authorities for the first time (co-terminosity). The other 'blue light' services and the NHS will follow, until all local government services follow regional boundaries.
The next 'pivotal' piece of legislation is imminent: a white paper5 on LGR is due in late June/early July 2006. It is expected to address the issue of second and third tier councils; and the numbers and roles of councillors generally. The move to 'regions' and 'parishes' will continue at pace.
Roy T Woollard Former head teacher Solicitor, BLM Leeds
become independent, half the reason for having a local authority disappears. Hence the battles behind the scenes to maintain an effective role. After much wrangling the LEA role has been 1 For A Short Guide to the Education and Inspection Bill 2006, an strengthened a little in the Bill. But the long term prognosis is excellent government document which summarises the Bill, visit: http://www.dfes.gov.uk/publications/educationandinspectionsbill/ not good! 2 An article entitled 'Ofsted Rules' on the detail of this is available from [email protected] Local government reorganisation 3 See 'Alarm Matters' Spring 2005, pages 7-9 or contact the author at [email protected] This education legislation should not be viewed in isolation. It is the vanguard of the wider vision for all Local Government 4 The Future of Local Government - Developing a 10-year Vision Office of the Deputy Prime Minister (ODPM) July 2004. Reform4 (LGR). Visit the Department for Communities and Local Government (DCLG) web site at http://www.odpm.gov.uk > What we do > Local That vision brings regional government to nine regions of government
England (London + 8) with powers similar to the Welsh Assembly. 5 Ruth Kelly, Minister at the DCLG will present this to the House. This regionalisation (likened to the German Lände or USA States)
Berrymans Lace Mawer page 15 The authority —— June 2006
Events - dates for your diary
ALARM 2006 medical professionals, topics include asbestos, lung cancer, stress claims and musculo-skeletal disorders. 26 - 28 June BLM's local authority division Delegates need to book early for this popular event. is delighted to be invited again to present workshops at the BLM Claims Review 2006 ALARM Conference and Exhibition at the Manchester 5 and 11 October Conference Centre. The BLM Manchester (5 October at New Century House) and speakers cover specialist topics London (11 October) at One Great George Street. including Disability Discrimination (Brian Each full day will feature BLM specialists and expert external Goodwin, BLM Liverpool), speakers covering topics such as EL, PL, costs, quantum, motor, The future of local policy development, claims trends, fraud, ADR/mediation and government: the 10 year vision seen through the eyes of the ECM health and safety. agenda (Roy Woollard, BLM Leeds), and The importance of documents in fighting fraud (Henry Bermingham, BLM Other events Birmingham). BLM is involved in and is sponsoring a number of seminars run Visit ALARM Stands 37 and 38 to meet our specialist team. by Post Magazine over the next few months including Management briefing 'Fraud' (Julian Smart, BLM Birmingham) Events calendar 2006 27 September, Claims Club Annual Conference 11 October, and Management Briefing 'Environmental Claims' 7 December BLM has a very comprehensive programme of events each year (Michael Salau, BLM London). offering in depth coverage of key specialist areas. This year highlights include: For full details of our full and half-day seminar programme, please contact: Linda Coppell, Berrymans Lace Mawer, 7 September Castle Chambers, 43 Castle Street, Liverpool L2 9SU.
The second of BLM's Occupational disease conferences takes T 0151 236 2002 place at the Renaissance Hotel, Deansgate, Manchester. e [email protected] Presented by BLM’s disease division and by expert barristers and DX 14159 LIVERPOOL 1 or visit www.blm-law.com
If you have any questions about the services that BLM can provide, please contact one of the following:
Birmingham Leeds Liverpool London Manchester Southampton Stockton-on-Tees Dubai 63 Temple Row Park Row House Castle Chambers Salisbury House King’s House Carlton House Innovation House Suite 701 Birmingham 19–20 Park Row 43 Castle Street London Wall 42 King Street West Carlton Place Yarm Road Al Khaleej Centre B2 5LS Leeds Liverpool London Manchester Southampton Stockton-on-Tees PO Box 28597 LS1 5JF L2 9SU EC2M 5QN M3 2NU SO15 2DZ TS18 3TN Dubai, UAE
T 0121 643 8777 T 0113 236 2002 T 0151 236 2002 T 020 7638 2811 T 0161 236 2002 T 023 8023 6464 T 01642 661 630 T +971(0)4 359 9939
F 0121 643 4909 F 0113 244 2002 F 0151 236 2585 F 020 7920 0361 F 0161 832 7956 F 023 8023 6117 F 01642 661 631 F +971(0)4 359 9938
DX 13077 BIRMINGHAM 1 DX 22149 LEEDS 1 DX 14159 LIVERPOOL 1 DX 33861 FINSBURY SQ DX 14302 MANCHESTER 1 DX 96880 SOUTHAMPTON DX 715799 STOCKTON 8
Henry Bermingham Chris Coughlin David Evans Michael Pether Jonathan Clay Jeffrey Wale Richard Clarke
Disclaimer This document does not present a complete or comprehensive statement of issues that may be of interest to clients of Berrymans Lace Mawer. Specialist the law, nor does it constitute legal advice. It is intended only to highlight legal advice should always be sought in any particular case. page 16 Berrymans Lace Mawer 0606_598