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?