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, Salesforce.com 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?