A Happy Ending: Coventry City Council Forced To Pay For Voluntary Care Provided By Good Samaritan

ANTONY EDWARDS-STUART QC
A WISE JUDGE

A child, kicked out of his home by his step-mother, was taken in by Elizabeth Casey.

Terry (the child) had had a lot of bad luck: his mother had died, his eldest brother had died, his other older brother had moved in with Ms Casey.

He had one piece of good luck. Ms Casey took him in when his step-mother, with at least the acquiescence of his father, kicked him out of the family home.

Ms Casey was given the impression by the local Council that she would receive financial assistance.

They reneged on an untrue technicality.

No surprise there.

Mr Antony Edwards-Stuart QC sitting as a Deputy High Court Judge has ordered them to pay. Read the case.

There is a lot of technical legal analysis of the law in the judgment but you can read that for yourself if you wish. The only part I will quote here is this:

"Terry has remained with Ms Casey, with whom he has been very happy. She has cared for and supported him ever since, almost entirely at her own expense. He is now 17 and attending a carpentry course at a City College in Coventry. Ms Casey's kindness to Terry reflects enormous credit on her and her care has been beyond reproach."

Result = Good judge. Very nice lady. Justice served.

The wriggling silly Council was Coventry City Council. May they live in infamy.

It Is Wrong To Bite Ears off Mentally Ill People: Landmark Legal Decision!

FB had an ear bitten off in the course of a dispute over a card game. The accused HR admitted there had been a "silly quarrel" in the course of a card game but denied biting FB's ear off. There were others present and one of them might have done it. He simply had not noticed who. To his great credit "HR made it clear that he was not suggesting that FB's ear might have been bitten off by a passer by". He accepted that it must have happened inside.

HR accompanied FB (with others) to hospital. FB said:

"...before they left he saw HR take from his mouth the piece of FB's ear which had been bitten off but then put it back in his mouth. On the way to hospital HR threatened violence to FB's family and himself if he were to report the matter to the police. The others joined in telling him to keep his mouth shut. At the hospital two police officers were called. FB initially told them untruthfully that he had lost his ear in an incident on Camden High Street, because one of the others was still present with him and he was scared about the threats which had been made".

With HR's creditable admission that this was not a passer by attack this seems to me a credible account and easily capable of belief by a jury.

However, the Director of Public Prosecutions through counsel instructed by the Crown Prosecution Service decided on the day of trial to offer no evidence against the accused. Two barristers concurred in this decision. It was reached as a result of a report by a Dr C that said that "FB had a history of psychotic illness in which he at times held paranoid beliefs about certain people and also suffered auditory and visual hallucinations".

This was an atrocious decision. The barristers have been given anonymity too, however.

It was also the case that FB had never held paranoid beliefs about HR, held no hostility towards him and had insight into his condition.

The barristers misread Dr C's report.

There was a case to be put before a jury.

Luckily, the application for judicial review of the barristers' decision succeeded. Lord Justice Toulson concluded that "the decision to terminate the prosecution was unlawful".

Unluckily, "because it was immediately followed by the prosecution offering no evidence, it was also irreversible".

So, HR will never face trial and FB will receive £8,000 in "just satisfaction" from the DPP.

Is that just satisfaction? A trial would have been but then I am not a criminal lawyer. If FB was not to have that then my non criminal lawyer opinion is that £8,000 is paltry recompense. I doubt, however, whether HR is worth powder and shot in a civil action. It might be nice if FB's legal advisers would launch one anyway. Just to show the bastard.

One last quotation from the detective constable involved when she told FB of the decision not to prosecute:

"The claimant was upset; I could see tears in his eyes. He kept on asking me if he could leave - he didn't want to sit and discuss the matter further. I asked him if he was ok to travel and he left the court building".

Trent Health Authority Guilty of Abuse of Power but No Redress for Victims: A Monstrous Injustice?

I am conscious of the need for a sub-editor to work on a title such as the above but read this...

Trent Strategic Health Authority* has been held guilty by the House of Lords of ruining Mr and Mrs Jain's nursing home business and causing them "serious economic harm" on the basis of a "without notice application that ought never to have been made".

[*Note: Trent's liability arises as successor to the Nottingham Health Authority, as is made clear in the judgments. But "they inherit any liability incurred by their predecessors". ]

Yet, Mr and Mrs Jain have no redress under English domestic law and will receive no compensation.

All of the law lords expressed great sympathy for the Jains and reached this second conclusion "with regret" for their "undeserved fate".

Many will be be of the view that where a government established body causes financial ruin to those subject to its authority AND is found to have behaved wholly improperly BUT its victims have no remedy THEN it follows that:

(a) something has gone badly wrong with the law; and

(b) a serious injustice has been allowed by the law to happen.

This is simply a logical proposition based on underlying assumptions concerning morality and justice. The assumptions are shared by most who live in democratic societies (of whatever religion or none). Such people may struggle to understand this decision but only if they are not also lawyers. We lot are used to the discordance between the law on one hand and justice on the other. It's one of the things that get us a bad name.

You should read the judgments by following the title link if you want to see how this discordance occurs.

Let us look at what Trent did (this is paragraphs 6-9 of the judgment of Lord Scott of Foscote):

"6. Mr and Mrs Jain's only recourse was to appeal to a Registered Homes Tribunal. This they did. But there was no procedure available for an expedited appeal and no procedure enabling a stay of the magistrate's order pending an appeal to be obtained. We were told that the procedures under which appeals to a Registered Homes Tribunal can be made lead to a minimum delay of six weeks before an appeal can be heard. In the event, Mr and Mrs Jain's appeal was not heard until February 1999, over four months after the order had been made, and, not surprisingly, by the time the appeal was heard irrevocable damage had already been done to their nursing home business, with an adverse knock-on effect on other assets that they owned.

7. The appeal, heard by the Tribunal on 8 and 9 February 1999, was a resounding success. But the success came too late to afford them more than the satisfaction of vindication. The Tribunal, having heard evidence from the Authority in purported justification for the action they had taken, did not call for any evidence from the Jains in response and were scathing in their criticism of the Authority. In the Tribunal's nineteen page Reasons For Decision one reads of the inclusion of irrelevant and prejudicial information in the statutory statement that had been placed by the Authority before the magistrate, of insinuations by the Authority of abuse of residents notwithstanding the absence of evidence sufficient to justify any charges of abuse, and of untrue suggestions by the Authority of failure by the Jains to comply with various statutory regulations. Some of the complaints made in the statutory statement about the running of the nursing home did, in the view of the Tribunal, have some substance but, commented the Tribunal, "none warranted the immediate closure of the home". They said that "there was no reason for supposing that the residents could not properly have been protected by proper monitoring by the inspectors and the provision of advice where necessary". The statutory statement had complained that building works of improvement being carried out at Ash Lea Court had produced an unsatisfactory physical environment for the residents, but the Tribunal noted that there was no evidence that the dust from the building works "posed any risk to the life or health of the residents" and concluded that the conditions at Ash Lea Court had not justified an application for an order under section 30 :

"… the respondents have wholly failed to persuade us that an application for an order cancelling registration under section 30 was an appropriate way of meeting [the Authority's concerns about the running of the nursing home]"

8. The Tribunal was particularly scathing about the Authority's decision to make their application ex parte and without notice to the Jains. While accepting that there had been "no bad faith" on the part of the officials who, on behalf of the Authority, had been responsible for making the application, the Tribunal said that they could see

"… no justification whatever for the failure to warn [the Jains] that the application was to be made"

So the Tribunal allowed the appeal, set aside the magistrate's order of 1 October 1998 and expressed, as a coda, their regret that they had no power to order the Authority to pay Mr and Mrs Jain's costs: cold comfort, no doubt, for the Jains.

9. The upshot of this sad story is that Mr and Mrs Jain's nursing home business had been ruined and serious economic harm had been inflicted on them by an ex parte without notice application that ought never to have been made".

Well, there you go Mr and Mrs Jaine. Trent are wholly discredited, have abused their powers, you have been ruined and all you get is "vindication". Oh, you can try your luck in Europe if you like. You will need to finance it if you can or get funding from the LSC.

You might also sympathise with the Jaines in respect of the finding of no bad faith. Read all of the judgments. I do.

An American Litigant in London

The case is Barclay v British Airways.

I wonder how this case would have been decided in the USA. Perhaps, someone will enlighten me.

Similar fact cases could be litigated in any country that is party to the Montreal Convention 1999. There was no dispute as to the facts of the case and everything turned on the construction of Article 17.1 of the Convention:

[British Airways] is liable for damage sustained in case of death or bodily injury of [Beverley Anne Barclay] upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

So there was only one question: Did the agreed facts constitute an "accident"?

The Agreed Facts

I summarise the key agreed facts as follows:

1. The aircraft was in normal working condition and all applicable aviation regulations had been complied with.

2. As she lowered herself into her seat, with her body weight towards the right, Ms Barclay's right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left.

3. Ms Barclay suffered injury in consequence of 2 above.

4. Ms Barclay had no remedy in contract or negligence but only under the Convention and only if she had suffered an accident.

This is only a brief summary and you should refer to the report for fuller details.

No Win No Fee?

You may by now have formed the opinion that this was a "brave" claim. But it went to the Court of Appeal and I, at least, would not have taken it on a no win no fee basis. Of course, Ms Barclay may be that rare litigant who is rich enough to fund speculative litigation regardless of advice because she is determined to have her day in court as a matter of principle.

Well, someone got it badly wrong.

This is Part 1 of a 2 part post. Look tomorrow for Part 2: The Decision.

Toadies and Sycophants

I am just watching A Man for All Seasons for the umpteenth time.

I love the scenes where the toadies wait for the king to laugh before they dare to and where they jump in the mud because he has done so. They remind me of our lower echelon politicians; meaning the cabinet, not simply the cannon fodder who masquerade as the people's representatives aka MPs.

I cannot find the scene but those above and below should show you how good this film is.

The Futility of Blogging

There is a blog headed "Blogging is Futile." Click on the title.

Now I knew this anyway but it was really brought home to me some months ago when I checked my weblogs and found that my most frequent visitor for a while was some nutty scientologist. (NB: All scientologist's are "nutty" by definition.) I had mentioned the word scientology in an unflattering context. When you do that, one of these barking mad people seems to get assigned to monitor your blog. Anyway, he or she gave up after a while. No doubt this was because this is a wholly insignificant blog that generates no traffic whatsoever.

So, in a major circulation drive, I just thought I would mention the word scientology again and say something mean. That way I may get a monitor assigned to me again and generate a few hits.

I might also mention that a Belgian prosecutor has expressed the view that the scientology church thingy is a criminal organization. A bit like the mafia I suppose but more scary. At least the mafia admit that they are bad nasty people only in it for money and power.

Forget the Credit Crunch. The Really Bad News is...

Oh No!

Someone is writing a new book about Winnie the Pooh.

This is sacrilege and I immediately pronounce fatwah calling upon all right thinking members of society to hunt down all of those involved and throw a substantial quantity of egg custard tarts at them.

I am now a Victim of Crime

I was burgled today so, with customary quintessential logic, I wish to share with you a photograph of a meercat.

Meercats are cute. They might steal things sometimes but not electrical goods.

They are also very calming to observe.

So guys, keep focused on the picture.

The knock on your door that you hear in the background is just those nice policemen who figured from the targeted nature of the thefts exactly who you are.

New Year Resolution: Let's All Go Kill Mugabe

Martin Fletcher writes in The Times that this is a war we should really get into. Debate.