Case Comment: Fallows v Harkers Transport (Royal and Sun Alliance, vehicle insurance)

Mr Fal­lows’ car was dam­aged by a vehi­cle owned by the defen­dants. Lia­bil­i­ty was not an issue. Mr. Fal­lows’ vehi­cle was insured by Roy­al and Sun Alliance, who sought to recov­er their costs from the defen­dan­t’s insur­ers. The costs were £1825.53. Not a large sum. How­ev­er, the defen­dants object­ed.

The rea­son for the objec­tion was that Roy­al and Sun Alliance arranged repair via a whol­ly-owned sub­sidiary, which then con­tract­ed with a sub­con­trac­tor, who actu­al­ly repaired the vehi­cle. The sub­con­trac­tor billed the sub­sidiary the sum of £1542.78. The sub­sidiary added on fur­ther costs, and billed Roy­al and Sun Alliance.

In Rom­ford Coun­ty Court, the defen­dants ques­tioned the sum claimed. It was held that, giv­en the duty to mit­i­gate, the best evi­dence of rea­son­able cost of repairs was that which RSA’s sub­sidiary nego­ti­at­ed with the sub­con­trac­tor. There was no evi­dence that RSA itself could only nego­ti­ate a high­er price. While admin­is­tra­tion costs have been allowed by the courts in the past, there are no deci­sions allow­ing them to a sub­ro­gat­ed insur­er, let alone a sub­ro­gat­ed insur­er’s sub­sidary. And in coun­ter­bal­ance, there are deci­sions where admin­is­tra­tion costs have been dis­al­lowed.

The Judge (Platt J) said:

Since RSAARL is whol­ly owned by RSA the effect of these extra charges if they are paid by defen­dants is sim­ply to boost RSA Group’s prof­its beyond the actu­al cost of repair by the mar­gins insert­ed by RSAARL. I can find no basis in law for say­ing that this is a course of action which a claimant insur­er is enti­tled to take [..]. On the evi­dence the defen­dant has clear­ly estab­lished a fail­ure to mit­i­gate on the part of the claimant.

Now that this judg­ment is pub­lic, the util­i­ty of this busi­ness arrange­ment to RSA is prob­a­bly moot. Oth­er insur­ers could use the same mod­el. This how­ev­er was found to be like­ly to lead to an increase in costs to the insured mem­bers of the pub­lic of some 25%.

RSA were held liable in costs to the defen­dant — exceed­ing­ly unusu­al in a small claim. Even though they were the claimant, they almost com­plete­ly failed to com­ply with pre–action pro­to­col and with the court–ordered dis­cov­ery process. For exam­ple, the exis­tence of a for­mal invoice from the repair­er to RSA’s sub­sidiary was not dis­closed, even once its exis­tence had become appar­ent dur­ing the tri­al.

Per­mis­sion was giv­en to appeal.

Judg­ment in the case can be found on BAILII at Fal­lows v. Hark­ers Trans­port (A Firm) [2011] EW Misc 16.

Your data in the Cloud is not secure from the US Government

Data stor­age in the cloud is clear­ly the where things are mov­ing just now. Giv­en the pletho­ra of devices peo­ple have — com­put­ers at home, lap­tops and tablets on the move, smart­phones in the pock­et, it makes per­fect sense for all of a per­son­’s devices to use a sin­gle, com­mon repos­i­to­ry for shared infor­ma­tion. Ser­vices such as Apple’s forth­com­ing iCloud at the domes­tic lev­el, and commonly–used ser­vices such as Google’s Google Apps, and Microsoft­’s Office 365 all store your data in their own clouds.

You’d think that this would be done with respect to Data Pro­tec­tion laws. Wrong. If the USA wants your data, the USA gets it. My friends Simon Bis­son and Mary Branscombe have the details: regard­less of Euro­pean pri­va­cy direc­tives and the UK Data pro­tec­tion act, the US see the PATRIOT act over­rid­ing these for US com­pa­nies and EU sub­sidiaries of US com­pa­nies:

That means that US gov­ern­ment can (under the aus­pices of the act) request the data of any indi­vid­ual or com­pa­ny that’s using US-owned or host­ed ser­vices, no mat­ter where that data is actu­al­ly being held. It does­n’t mat­ter if you’ve geo-locked your data, and it only resides in Euro­pean data cen­tres, it can still be req­ui­si­tioned and tak­en to the US. Yes, it’s an issue of nation­al secu­ri­ty, but when results can be found by machine learn­ing and trawl­ing mas­sive data sets (the larg­er the bet­ter), there’s a temp­ta­tion for gov­ern­ments to take all they can and more.

Undoubt­ed­ly this will lead to much hand–wringing in the EU Par­lia­ment. How­ev­er, what can be done? It is unlike­ly that the USA will give up their pow­ers.

There­fore, the only solu­tion is in the hands of indi­vid­u­als and com­pa­nies wish­ing to use cloud ser­vices — only use cloud ser­vices from wholly–EU–owned com­pa­nies host­ing your data inside the EU. While the legal pro­tec­tions you will have in those cir­cum­stances are not huge, they are bet­ter than none at all.

Oh — an after­thought. How hap­py do you now feel, if per­haps you have just giv­en a whole heap of your per­son­al infor­ma­tion to Google, dur­ing the Google Plus sign–up process?

BAILII needs help

My road toward the law has been long and not direct — but one web site in par­tic­u­lar kept my inter­est when I was­n’t sure what I want­ed to do. Giv­en my sci­ence back­ground and near–obsessive need for infor­ma­tion, you may not be sur­prised that the site is BAILII.

BAILII is a data­base of case law. It con­tains recent deci­sions for the full range of courts and tri­bunals across the UK, his­toric deci­sions, and deci­sions from oth­er juris­dic­tions. It is free to access, and the best way in the UK for the lay per­son to access case law, giv­ing the abil­i­ty to inform them­selves about things like legal mat­ters in the press, but more impor­tant­ly giv­ing the abil­i­ty to research and arm them­selves in sit­u­a­tions where there can be lit­tle oth­er help — a dis­pute with a pub­lic body, or an employ­er, for exam­ple.

Run­ning BAILII is nat­u­ral­ly not free. While a num­ber of firms have made com­mit­ments to fund­ing, more is required to guar­an­tee the con­tin­u­ing sur­vival of what, to me, is an essen­tial ser­vice. Frankly, I think it should be a publicly–funded ser­vice, but that is not like­ly in this day and age.

If, like me, you believe this ser­vice should con­tin­ue, please con­sid­er donat­ing to BAILII. It is a char­i­ty, dona­tions are man­aged via the Char­i­ties Aid Foun­da­tion, and are gift-aid­able (please do that if you can, it means an extra 25% to them).

News from the Florida Justice System

A man who killed two British tourists in Flori­da will not go to jail — even though he fled the scene and lied to the police. Ryan LeVin paid an undis­closed amount to the wid­ows of those he killed, and will serve two years house arrest.

The offences’ sen­tenc­ing guide­lines call for up for 45 years’ impris­on­ment.

His lawyer was the Judge’s deputy cam­paign trea­sur­er.

For all peo­ple com­plain about the UK jus­tice sys­tem, I’m glad that it’s pret­ty much as it is.

Alex Salmond’s criticism of the UK Supreme Court is grandstanding

So, Mr. Salmond would like to see the removal of the Supreme Court’s pow­er to decide Human Rights issues with regard to the Scot­tish crim­i­nal jus­tice sys­tem. More­over, he has cho­sen to per­son­alise the issue by attack­ing Lord Hope, the deputy pres­i­dent of the Supreme Court, and pre­vi­ous­ly lord jus­tice gen­er­al of Scot­land. The sit­u­a­tion has become so far­ci­cal that the Scot­tish Gov­ern­ment, led by the SNP, are look­ing at remov­ing fund­ing for the Supreme Court.

Loads of heat and noise there, against a tar­get that, to retain its impar­tial­i­ty, does not involve itself in pol­i­tics. It’s easy to shoot at some­thing that won’t shoot back, isn’t it?

Any­way, the changes the SNP are propos­ing will not mean that deci­sions of the Scot­tish crim­i­nal courts will not be prone to any review — it will mean that, as before the intro­duc­tion of the Scot­land Act and the Human Rights Act, Human Rights chal­lenges to it will have to go to the Euro­pean Court of Human Rights in Stras­bourg rather to the UK Supreme Court. This will of course mean con­sid­er­able delay com­pared to now. And on the Euro­pean Court of Human Rights there are pre­cise­ly no judges with exten­sive under­stand­ing of the Scot­tish crim­i­nal jus­tice sys­tem. On the UK Supreme Court, there are two — Lord Hope and Lord Rodger, who is unfor­tu­nate­ly ill at the moment.

What Alex Salmond is doing is trans­par­ent — and it has noth­ing at all to do with the qual­i­ty of jus­tice in Scot­land, or the rest of the UK. Salmond, as leader of the Scot­tish Nation­al Par­ty, has just won a major­i­ty in the Scot­tish Par­lia­ment. His par­ty are com­mit­ted to a ref­er­en­dum on whether Scot­land should be inde­pen­dent or not in the lat­ter half of this par­lia­men­tary ses­sion. It is there­fore to his advan­tage to crit­i­cise deci­sions made by oth­ers that affect Scot­land — it’s the old “them and us” ploy. While Mr Salmond has always had a ten­den­cy to play the “poor down­trod­den Scots” card at every oppor­tu­ni­ty, to per­son­alise the attack against the Scot who, with the oth­er mem­bers of the Supreme Court, is the last bas­tion against Human Rights-based mis­car­riages of crim­i­nal jus­tice in Scot­land, is rep­re­hen­si­ble.

What we should real­ly be ques­tion­ing here is the deci­sions of the High Court of Jus­ti­cia­ry in Edin­burgh. In both their judg­ment in Fras­er and HMA v McLean (the fore­run­ner to Cad­der) — the lat­ter with a bench of no less than sev­en jus­tices — they have got a point of Human Rights law wrong. What is caus­ing this dif­fi­cul­ty in cor­rect­ly analysing whether aspects of the Scot­tish crim­i­nal jus­tice sys­tem is com­pli­ant with the Con­ven­tion on Human Rights?