UK: Insurance And Reinsurance Weekly Update - 19 June 2012

Last Updated: 25 June 2012
Article by Nigel Brook

Welcome to the twenty-first edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2012.

These updates are aimed at keeping you up to speed and informed of the latest developments in caselaw relevant to your practice.

Contents

CXX v DXX
A case on whether criminal convictions can be contested in a civil case.

A and B v Hampshire Constabulary
A case concerning barrister immunity following Jones v Kaney.

Mackew v Moore
A decision on whether the English or Swiss court was first seised and which proceedings a freezing injunction was intended to support.

Other News
Changes to the CPR in April 2013 re costs unveiled in a speech by Lord Neuberger to the Law Society.

CXX v DXX

Whether criminal convictions can be contested in a civil case

http://www.bailii.org/ew/cases/EWHC/QB/2012/1535.html

The defendant was convicted in a criminal case and the claimant brought civil proceedings against him based on the same facts. The Court of Appeal (Criminal Division) refused the defendant leave to appeal against the conviction but he subsequently applied to the Criminal Cases Review Commission ("CCRC"). He argued in the civil proceedings that he should not be barred from challenging the conviction (and certainly not before the outcome of the CCRC application is known).

There are two previous conflicting High Court authorities concerning whether a defendant can relitigate a criminal conviction in a civil case on the same matter. In this case, Spencer J held that section 11(2) of the Civil Evidence Act 1968 (which provides that "In any civil proceedings in which ....a person is proved to have committed an offence by or before any court in the United Kingdom...(a) he shall be taken to have committed that offence unless the contrary is proved....") undoubtedly gave a defendant the right to challenge a conviction by showing on the evidence (if he can) that the conviction was wrong. It cannot be the case that it is automatically an abuse of process to seek to do that which the statute permits a defendant to do. However, it all depends on the circumstances. In this case, the judge was satisfied that the defendant was not challenging the conviction just to vex the claimant and so there was no abuse of process.

Nevertheless, the conviction was "weighty evidence", especially in light of the unsuccessful criminal appeal. Given all the circumstances, there was no real prospect of a successful defence and the claimant was entitled to summary judgment.

A and B v Hampshire Constabulary

Barrister immunity following Jones v Kaney

http://www.bailii.org/ew/cases/EWHC/QB/2012/1517.html

The claimant alleged that the police (the defendant) had wrongfully disclosed his identity during a preliminary court hearing (in which prosecuting counsel publicly disclosed that the police had relied on information from an informer). The defendant argued that it could rely on the well-recognised immunity extending to parties and their advocates in relation to anything said or done in the course of proceedings at court. The claimant sought to argue that, given the Supreme Court case of Jones v Kaney (see Weekly Update 13/11), which abolished the immunity of expert witnesses from suit for breach of duty in relation to evidence given in court, it could no longer be said with confidence that the core immunity relied upon in this case still survived (at least in relation to the conduct of the barristers in this case).

That argument was rejected by Spencer J: "The Supreme Court in Jones v Kaney cannot be taken to have intended to abolish the core immunity under examination in the present case, which has been enjoyed by witnesses, parties and their advocates for centuries". Jones v Kaney was concerned only with the liability of a "friendly" expert to the party who instructed him.

Thus the immunity applied in this case.

Mackew v Moore

Whether English or Swiss court first seised and which proceedings freezing injunction was intended to support

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/ EWHC/QB/2012/1287.html&query=title+(+mackew+and+moo re+)&method=boolean

The claimant applied to the English court for a freezing injunction. One of the issues in this case was whether the English or the Swiss court was first seised of proceedings. This was important because if the freezing injunction was sought in aid of the Swiss proceedings (as the defendant contended) then the claimant would have to show "a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction" of the English court (see Van Uden Maritime v Firma Deco-Line [1998], an ECJ decision on the Brussels Convention which the judge held applied to the Lugano Convention as well).

On the facts, the judge found that the English court was first seised. Article 30(1) of the Lugano Convention provides that a court shall be deemed seised "at the time when the document instituting the proceedings is lodged with the court". In this case, although the Swiss court was involved following an application by the claimant to a judge there, the document instituting those proceedings was issued by an administrative authority, not a court, and it was not lodged with the court. Hence the Swiss courts were not "seised" at that time for the purposes of Article 30(1).

In any event, Donaldson J declined to grant the freezing injunction, in part because the defendant was not resident here and did not have any property here either - it was therefore preferable for the Swiss courts to grant the equivalent of a freezing injunction (the defendant being resident there).

Furthermore, the claimant had already applied to the Swiss courts for a freezing injunction and hence this was not a case where the English court was being asked to fill a gap in the powers of the foreign court (where the assets are located and the defendant is resident): "It is rather a request to the English court to second-guess the decision of that [Swiss] court. Considerations of comity dictate in my view that such a course should only be taken, if ever, in exceptional circumstances". It was also improper for the claimant to seek to enforce his claim in parallel proceedings (although he could seek a freezing order in support of the Swiss proceedings).

Other News

Changes to the CPR in April 2013 re costs unveiled in a speech by Lord Neuberger to the Law Society:

In the case of Lownds v Home Office [2002], Lord Woolf advised that a two-stage approach was required when assessing costs: (1) Is the total sum claimed proportionate? (2) If it is, each item will normally be allowed if it is reasonable; if it is not, each item will normally be allowed only if it is both reasonable and necessary. Jackson LJ recommended a change to this test and in a recent speech by Lord Neuberger, it has been confirmed that from April 2013 the effect of Lownds will be reversed.

Accordingly, disproportionate costs will not become proportionate just because they are necessary. Disproportionate costs will not be recoverable from the paying party. Under the new approach, the court should make an assessment of reasonable costs having regard to the individual items in the bill. However, if the total figure is then found to be disproportionate, an appropriate reduction should be made. As Lord Neuberger put it "Parties and their lawyers must keep firmly in mind that they ought to expend no more than a proportionate amount of money in the pursuit of justice. If they wish to spend more, they must appreciate that such sums will not be recoverable from their opponent". In certain cases, the court may even refuse to allow a party to expend a disproportionate amount even at its own expense. The new costs rule will also operate throughout the life of proceedings and even before a claim form is issued.

Furthermore, a new test for proportionality (CPR r44.4(5) is to be introduced. This will provide that costs are proportionate only if they bear a reasonable relationship to: (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party; and (e) any wider factors involved in the proceedings (such as reputation or public importance). The speech can be found following the link below:

http://www.judiciary.gov.uk/Resources/JCO/Documents/ Speeches/proportionate-costs-fifteenth-lecture-30052012.pdf

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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