LEGAL NEWS

CONTRACT & TORT

Rose Moore, Robert Simpson, Christopher Dalziel, Teck Chon

FOOTBALL AGENT WINS LIBEL CASE

Article title: 'Willy McKay Awarded Substantial Damages'

Date of article: 1st February 2008

Article source: http://www.timesonline.co.uk/tol/sport/football/article3290292.ece

THE TWO PARTIES

Claimant: Willie McKay, football agent. Clients include many high-profile Premiership players, including Joey Barton

Defendants: Express Newspapers, owned by Richard Desmond

THE FACTS OF THE CASE

- In March 2006, Premier League launched inquiry, headed by Lord Stevens, into irregular payments in transfer dealings

- In October 2006, Lord Stevens not prepared to sign off 39 of those transfers.

- In December 2006, he was still not prepared to sign off on 17 of those

- McKay involved in four of those transfers

- Agent met with Inquiry team (Quest) in January 2007 to provide information

THE FACTS OF THE CASE

- That same month, Daily Express published article about McKay and dealings

- Stated that agent's meeting with Quest was an “interrogation”, and claimed McKay had previously been investigated by French judiciary as part of another probe into transfer fraud in France

- McKay brought proceedings to the High Court

THE OUTCOME

- 1st February 2008 – McKay accepts substantial undisclosed libel damages

- No clear evidence of irregular payments found in transfers which involved McKay. Agent “thanked for his co-operation”

- Express Newspapers (and football journalist Harry Harris) accepted allegations were untrue. Agreed to pay legal costs as well as damages

- Paper's counsel said they “welcomed the opportunity to set the record straight”

THOMPSTONE V TAMESIDE AND GLOSSOP ACUTE SERVICES NHS TRUST:

Where: Court of Appeal (Civil Division)

When: 17 January 2008

Citation: [2008] EWCA Civ 5; (2008) 158 N.L.J. 146; Times, January 30, 2008;

Source: Westlaw: http://login.westlaw.co.uk.

IN THE FIRST INSTANCE:

The appellants; NHS trusts and health authorities appealed against previous decisions involving the making of periodical payments orders under the Damages act 1996 s.2(1).

In all four cases, liability had been admitted.

All were concerned with severely injured claimants who were seeking future losses, particularly costs of future care.

CONT…

The judge in each case had referred to the authority of Flora v Wakom, which decided that s.2 (9) of the Act allowed the court to make the orders identified not simply in exceptional circumstances but whenever it appeared appropriate and fair to do so.

In three of the four cases, the judge decided to make an order under s.2(9) modifying the effect of s.2 (8) by providing for the amount of the payments to vary

THE APPEAL

The appeal was based on several arguments including:

(1) Flora had been decided per incuriam and was therefore not binding;

(2) the word "modifying" in s.2(9) related to the "index" and was therefore limited to increasing or decreasing the retail prices index specified in s.2(8);

(3) the principle of distributive justice required that s.2(9) should be used to disapply the RPI only in exceptional circumstances;

(4) the claimant had the burden of showing that there was an appropriate alternative to the RPI.

THE VERDICT:

APPEAL DISMISSED:

In response to these points it was held that:

(1)The submission that Flora had been decided per incuriam was hopeless (!).

(2)Flora required the court to reject the second submission. In any event, s.2(9) used the words "modifying the effect of subsection (8)"; it did not

confine itself to "modifying the index". (3) In this situation, it was "corrective justice", not

distributive justice, with which the court should be concerned.

CONT…

(4) The judge in one of the instant cases had been correct to state that his task was to decide what form of order would best

meet the claimant's needs and to determine, what was appropriate, fair and reasonable. He had also been right to say that such matters did not lend themselves to determination by

the burden of proof, and that the claimant had only an evidential burden. The question whether the RPI should be replaced

would depend on the alternatives available and was bound to be a comparative exercise.

FURTHERMORE:

The claimant's "needs" were not limited to the needs that he demonstrated for the purpose of proving the various heads of

damage but included those things that he needed to enable him to organise his life in a practical way. The judge should apply an

objective test. He had to have regard to the wishes and preferences of the parties and to all the circumstances, but ultimately it was for him to decide what order best met the

claimant's needs.

SHOW ME THE MONEY!

The article starts by discussing Lotfi Raissi, an airline pilot who was wrongly detained in this country after the 2001 terror attacks

in America, who lost his battle with the Home Office for compensation.

(what he would have looked like if he’d won!)

Harkin states that Mr Raissi was the victim of an “unconscionable injustice”,but that his decision to seek financial recompense illustrates how the war on terror is becoming a lucrative new

practice for ambulance-chasing personal injury lawyers.

THE RANT CONTINUES…

British soldiers wounded in Iraq as a result of "criminal action" should be subject to the same compensation awarded to victims of crime in the UK.

A rape victim successfully sued her assailant from beyond his grave, for £259,000 for the injury she suffered at his hands.

“our culture of gratuitous compensation” AND “our fetish for seeing things as

commodities” “The urge to transform everything into compensation is one of the most

corrosive aspects of contemporary life, hobbling any attempts to kickstart political activism and a civil society. What no politician is brave enough to say is that humans err and that injustices are a matter for politics and not for the law of tort”.

BREACH OF CONTRACT? ACCEPTABLE BEHAVIOUR?

Article title: 'B&Q and Bishop's Move: pay and wait'

Date of article: 3rd February 2008

Article source: http://business.timesonline.co.uk/tol/business/money/consumer_affairs/article3294103.ece

THE CONTROVERSIAL FACTS

- Companies such as B&Q and Bishop's Move have been taking full payment before jobs are completed (in some cases, more than a year in advance)

- Payment taken from moment contract has been signed

- Companies have been direct debiting customers' accounts without their knowledge

- Has even left one Bishop's Move customer overdrawn

BREACH OF CONTRACT LAW?

What the customers say

- Little bargaining power if something goes wrong

- No legal protection

- No knowledge of instant direct-debiting

- Stung by small print

What the customers say

Name: Emma Ward

Age: 34

Location: Essex

Company used: B&Q

Her story: Paid £10, 400 for new bathroom and kitchen 12 months ago, but work did not start for three months.

“The whole thing took months to resolve. If I had known it would take so long to get things going, I would not have wanted to pay so much and so far in advance. A year later, my kitchen is still not finished”.

BREACH OF CONTRACT LAW?

What the companies say

- Acting within the law. Simply following terms and conditions of the contracts

- Rules are clearly marked in small print. Therefore, the customers’ responsibility to read and check through thoroughly before agreeing and entering into contract

- B&Q say that they are only doing what retailers of a similar service are currently doing

- Bishop’s Move say that they are compliant with code of conduct drawn up by British Association of Removers

RESOLUTION?

- British Association of Removers admit that code of conduct “could be tightened up” (could be addressed later this year)

- Will tell members not to take payments so far in advance

- Trust Mark feel that taking payment more than six weeks in advance of starting a job is “extreme”

- The Office of Fair Trading is currently investigating companies’ codes of conduct as part of its consumer code approval scheme

Evans v Cherry Tree Finance Ltd

Where: Court of Appeal (Civil Division)

When: 05 FEBUARY 2008

Source: Westlaw: http://login.westlaw.co.uk.

THE CASE:

The appellant finance company (C) appealed against a decision that an early redemption penalty imposed by it on the respondent borrower (Eric) was unfair. Eric and his wife ran an antique restoration business from a property that they owned. The property was partially residential accommodation, in which Eric and his wife resided, and partially business premises. The residential accommodation and business premises had separate addresses.

Eric's wife initiated divorce proceedings and the partnership was dissolved. Eric applied to C for a loan so that he could buy his wife's interest in the property as part of the divorce settlement.

CONT…

The application form used was entitled a "Secured credit agreement for a commercial loan".

Eric stated that the purpose of the loan was to repay an existing mortgage and to pay his ex-wife a divorce settlement. Eric defaulted on the loan repayments and the property was sold by C.

C realised the amount due under the loan, which also included a sum in respect of an early redemption penalty.

E brought proceedings against C claiming that he was not bound by the terms imposing the penalty because they were unfair.

The judge held that E's purpose in taking out the loan was not a business one, namely it was to buy out his wife in the divorce proceedings. Accordingly, the judge found that E was a consumer for the purposes of the Unfair Terms in Consumer Contracts Regulations so that the Regulations applied to the loan contract, and that the condition imposing the penalty was unfair.

THE APPEAL: C contended that the judge had erred in concluding on the material before

him that the loan was not a commercial loan. In particular C contended that the loan had enabled Eric to continue to earn his livelihood and thus was within E's business or trade.

THE VERDICT:

Appeal dismissed: In the circumstances of the case, the judge had been entitled to conclude that the loan was for a purpose outside E's business or trade. The loan was to enable Eric to continue his livelihood, but the stated purposes on the application form were equivocal, in particular the statement that one purpose of the loan was to pay off a mortgage. Moreover C could have deduced from the information supplied to it that E had been both living and working at the property.