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AUTUMN 2011: ISSUE 8

HOW CAN UNMARRIED COHABITEES ESTABLISH PROPRIETARY RIGHTS OVER THE HOME IN WHICH THEY LIVE? SWEET & MAXWELL REUTERS / Russell Cheyne

CONDITIONAL FEE AGREEMENTS IN HOUSING DISREPAIR CASEs JURORS AND THE INTERNET


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WILKINSON’S ROAD TRAFFIC OFFENCES NEW 25TH EDITION OUT NOW Consultant editor: Peter Wallis; General editor: Kevin McCormac OBE, MA

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Analysis of recent developments in evidence and procedure e.g. R (on the application of Trigger) v Northampton MC (2011) In-depth commentary on latest drink/driving decisions New case law on key aspects of road traffic law: R. v Oughton (2010) (motor manslaughter); R. v Hall (2010) (death by careless cycling); R. v Martin (2010) (death by dangerous driving: aiding and abetting); R. v Girdler (2009) (causing death by dangerous driving); Connell v Crown Prosecution Service (2011) (speed limits; evidence and corroboration) Note of relevant statutory instruments including changes to law as regards construction and use; driving tests and licences; keeping a vehicle not meeting insurance requirements; carriage of dangerous goods; immobilisation and removal of unfit or overloaded vehicles; detention of goods vehicles and public service vehicles; fixed penalty offences Latest statutory developments in the UK and in Europe including the Coroners and Justice Act 2009 and new EU Regulations on access to the international road haulage market and the international carriage of passengers by coach and bus Full updating in Noter-up to Volume 2

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TODAY’S SOLICITOR

Welcome to the Autumn edition of Today’s Solicitor from Sweet & Maxwell

in this issue:

For those of you expecting to see Jacqueline’s headshot featured here, I am sorry to disappoint. Jacqueline is away on maternity leave so I am standing in as editor until her return.

4 NEWS 7 PROPRIETARY RIGHTS FOR UNMARRIED COHABITEES

A broad variety of exciting content awaits you in this issue, including a piece on Conditional Fee Agreements in Housing Disrepair Cases by David Marshall and a thought-provoking article on Proprietary Rights for Unmarried Cohabitees by Thomas Duggin.

11 CONDITIONAL FEE AGREEMENTS IN HOUSING DISREPAIR CASES

You’ll also hear about the impact of the internet and social networking sites on jury trials in Jurors and the Internet and this issue’s Westlaw UK Case Comment dissects an interesting personal injury claim made as a result of a road traffic accident.

21 PRODUCT PROFILE Court of Appeal Criminal Division

Jeremy Woolf, author of The Declaratory Judgment, is under the spotlight in the Author Profile. In addition, you’ll find new titles and established favourites featured in this issue’s bookshop, and other news and developments from across the industry. To keep yourself up-to-date, make sure you visit todayssolicitor.co.uk and follow us on Twitter at twitter.com/todayssolicitor

14 WESTLAW UK CASE COMMENT Personal Injury: Road Traffic Accidents 17 JURORS AND THE INTERNET

22 BOOKsHOP 23 EVENTS CALENDAR 24 AUTHOR PROFILE Jeremy Woolf 26 YOUR SWEET & MAXWELL CONTACTS HOW TO ORDER By post: Sweet & Maxwell, PO Box 2000, Andover, Hants SP10 9AH By telephone: 0845 600 9355

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NEWS

WORKING SMARTER

REVISITING THE LAW ON DRUGS WITH RUDI FORTSON QC MISUSE OF DRUGS AND DRUG TRAFFICKING OFFENCES

NEW 6TH EDITION

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In the six years since the publication of Rudi Fortson’s last work on the law on the misuse of drugs, there has been considerable change across the spectrum of drug laws. Enforcement in respect of controlled drugs, ‘legal highs’, and it’s anticipated Temporary Class Drugs, makes an understanding of substantive and inchoate offences (including Part 2 of the Serious Crime Act 2007) and the Medicines Act 1968, essential. The new 6th edition of Misuse of Drugs and Drug Trafficking Offences has been substantially revised to encompass all these developments, including a detailed explanation of rules relating to confiscation and deprivation orders. You can also expect unrivalled coverage on the complexities of the law in this area, and a clear explanation of the concepts and principles involved. The work covers everything from production and supply, importation and exportation, to possession and use, and progresses further into areas such as rules of evidence, police powers, drug money laundering, and sentencing. The 6th edition publishes in December, priced at £115. Visit sweetandmaxwell. co.uk to order your copy, or contact your Account Manager.


RECORD NUMBERS CALL FIND-A-SOLICITOR SERVICE FOR INSOLVENCY-RELATED LEGAL ADVICE Contact Law, which refers legal enquiries to more than 5,000 solicitors throughout the UK, recorded a 72% increase in enquiries relating to insolvency issues between January and July 2011, compared to the same period last year. In addition to rises in insolvency, Contact Law also saw a smaller but significant increase in enquiries relating to employment issues, with a 30% rise in enquiries in the year to date, compared to the same period last year. Contact Law’s team of legal advisers have fielded more enquiries in 2011 relating to employment issues than any other area of law, with almost a quarter (22%) of all enquires from people specifically calling to speak to an employment lawyer. The majority of the employment enquiries received were from people who had already been dismissed by their employer either unfairly or constructively, or from people who were about to be made redundant. ABOUT CONTACT LAW Contact Law works with more than 5,000 solicitors located throughout the UK, who can help individuals and businesses in all areas of law. These include family, employment, litigation, commercial, personal injury, will & probate, immigration and conveyancing. contactlaw.co.uk

Follow us at Be sure to follow us at twitter.com/ todayssolicitor and keep up-to-date with news that may be of interest to you, new products and events. If you are a personal injury practitioner why not follow twitter.com/PI_legal If you’re a Westlaw UK or Lawtel subscriber you can follow us at twitter.com/westlawuk or twitter.com/lawteluk for news on product enhancement and general legal updates. We are also on Linked In. Visit the Today’s Solicitor Group today.

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WHAT’S NEW ON THE HORIZON The Mental Health Act Manual is your indispensible guide to the Mental Health Act 1983. Written in a clear practical style, it provides easy access to the law regarding mental health plus explanatory commentary to help ensure that the law is fully understood. Among the developments incorporated in the 14th edition are:

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THE MENTAL HEALTH ACT MANUAL

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Richard Jones

Inclusion of the annotated Tribunal Rules and the associated Practice Direction

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PROPRIETARY RIGHTS FOR UNMARRIED COHABITEES

REUTERS / Toby Melville

HOW CAN UNMARRIED COHABITEES ESTABLISH PROPRIETARY RIGHTS OVER THE HOME IN WHICH THEY LIVE? Thomas Duggins What remedies are available when an unmarried cohabiting relationship breaks down? Thomas Duggins considers what property rights may be claimed in a former family home with no minors. Disputes between unmarried cohabitees concerning property ownership have become increasingly common in recent years, as more couples live together without marrying. Very often, one party may have owned the property prior to the relationship beginning and cohabitation has flowed naturally. In such cases, the non-owning party may have treated the property as their own, in the belief that they have assumed a share of ownership through their continued relationship with the registered owner, or through contributions they may have made to household expenses. The persistence of the belief amongst a large part of the population in “common-law marriage” leads many non-owning parties to assume that they will have access to the same remedies as married couples, should they subsequently separate from their partner. However, the truth is far from this mistaken assumption. Rather, the court’s starting point will be that beneficial ownership follows legal title. In the event that the property in dispute is held in one party’s sole name, it may possible for the non-owning party to establish that the owner holds the property (or a portion of it) on trust for them. In the absence of an express declaration of trust, the court may be asked to establish the existence of either a constructive or resulting trust. The position is significantly different in the case of non-married cohabitees who have children under the age of 18 where provision is made under Children Act 1989 Sch.1.

Constructive trusts When deciding whether a constructive trust exists, the court must direct itself to the following questions: 1. Was it intended that the beneficial interest in the property was to be shared? In Lloyds Bank Plc v Rosset,1 Lord Bridge observed, “The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially”. The burden of proof is on the non-owning party to establish this intention. In the absence of an express agreement that the parties are to share ownership, the court will consider the parties conduct to see whether a common intention that the ownership was to be shared can be inferred. In Lloyds Bank v Rosset,2 Lord Bridge found that direct financial contributions towards the purchase of the property (whether through the initial deposit or subsequent mortgage repayments) would readily justify this inference, but questioned whether anything less would suffice. Subsequent case law suggests that Lord Bridge set the threshold too high. In Oxley v Hiscock,3 it >

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PROPRIETARY RIGHTS FOR UNMARRIED COHABITEES

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was decided that indirect financial contributions towards the purchase price may be sufficient to infer a common intention that ownership was to be shared, for instance, work done or services rendered by the non-owning party, or expenditure that they have incurred, which has relieved the owning party of some of their financial obligations.

2. Has the non-owning party relied upon this common intention and acted to their detriment? In most cases, where common intention has been inferred from conduct, the non-owning party’s conduct (in the form of direct or indirect financial contributions) is sufficient evidence that they have acted to their detriment as a result of such an intention. 3. If it was intended that the beneficial interest in the property was to be shared, what is the nature and proportions of the parties’ respective shares of the beneficial ownership? In the first instance, the court will look to any express agreement made between the parties as to their respective shares, or discussions from which such an agreement can be deduced. In the absence of agreement, guidance was offered in Oxley v Hiscock,4 where the Court of Appeal found the correct question to be: “What would be a fair share for each party having regard to the whole course of dealings between them in relation to the property?” In this case, the parties’ respective interests were found to be proportionate to their contribution to the initial purchase price (60/40), on the basis that thereafter, they had pooled their resources to pay the mortgage instalments.5 However, it is worth noting that in Stack v Dowden,6 Baroness Hale considered Oxley v Hiscock and found that the court should not abandon the search for what the parties intended, in favour of what the court considers “fair”. Emphasis will therefore be placed on what the parties had intended their respective shares to be (as far as this can be discovered). Resulting trusts A resulting trust may arise when the non-owning party has made a direct financial contribution towards the purchase of the property. Unlike constructive trusts, there is no requirement that there be a common intention that the property is to be shared, nor any requirement that the non-owning party has acted to their detriment. A direct financial contribution may include the payment of legal fees or stamp duty at the time of purchase.7 The concept has been extended to include a cash discount on the purchase price offered under the Right to Buy scheme.8 As regards quantification, the court will apportion the parties’ shares in accordance with their respective financial contributions. The existence of a direct financial contribution towards the purchase of the property made by the non-owning party can itself be used to infer a common intention that the parties intended the property ownership to be shared (following Lloyds Bank v Rosset) and is evidence that the party has acted to their detriment in reliance on this common intention.

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“If the non-owning party wishes to exercise their entitlement to a share of the property in dispute, they can apply under the Trust of Land and Appointment of Trustees Act 1996 for a sale of the property…” Accordingly, in cases involving domestic property, most non-owning parties have the option of relying upon a resulting or a constructive trust. The benefit of a constructive trust is that the courts will consider what the parties intended their respective shares to be (per Baroness Hale in Stack v Dowden) when quantifying their interests, and not look only to the value of financial contributions. When seeking to establish the extent of their ownership, the claimant party will clearly prefer the wider test applied under constructive trusts. Following Lloyds Bank v Rosset, resulting trusts are rarely used in the domestic context. Proprietary estoppel As with constructive trusts, proprietary estoppel allows the court to intervene where it would be inequitable to deny the non-owning party a share of ownership, when they have acted to their detriment in the belief that they have a share. In order to establish proprietary estoppel (a) the non-owning party must have acted to their detriment, in the belief that the owning party has either given, or is going to give, them an interest in the property; (b) the owning party must have encouraged this belief; and (c) it must be inequitable for the owning party to seek to assert their strict legal rights against the nonowning party.9 Although these principles are similar to those relied upon in constructive trusts, there is an absence of the requirement for “common intention”.10


Proprietary estoppel may be useful in cases where the claimant party has made no direct financial contribution to the acquisition of the property. For example, in Gillett v Holt,11 the non-owning applicant had been given frequent and public assurances by a close family friend that he would leave him his farm. The applicant had worked on the farm for long hours and had taken a high degree of responsibility for its management, pursuant to the belief that it would one day be his. At one stage, the applicant was even left the farm in the owner’s Will, but the Will was later revoked when the parties fell out. The Court of Appeal decided that the farm should be transferred to the applicant pursuant to the principle of proprietary estoppel. Applications under the Trust of Land and Appointment of Trustees Act 1996 If the non-owning party wishes to exercise their entitlement to a share of the property in dispute, they can apply under the Trust of Land and Appointment of Trustees Act 1996 for a sale of the property12 or for a declaration as to the extent of their interest in the property.13 The court may also make orders relating to who has the right to occupy the property.14 Conclusion Providing the evidence required to establish a constructive or resulting trust, or proprietary estoppel, can be a difficult process, particularly if the enquiry takes place at the end of a long relationship where there has been a significant intermingling of the parties’ finances. It can also lead to what many would consider unfair outcomes. Picture a couple who have lived together for 25 years in a relationship akin to a marriage, with the financial and non-financial support that this entails. It may be that they never considered the implications of their home being in the name of one party only. At the end of this relationship, if the non-owning party is not able to satisfy the contribution criteria detailed above (and this may be the case, if no direct financial contributions have been made to the property), they would leave the relationship with no entitlement to a share of their home. The situation would be quite different had they been married.15

The Law Commission published a consultation paper in May 2006, detailing proposals for reform in the area of cohabitation. It considered whether legislation should be introduced which would grant cohabitants similar entitlements to married couples at the end of their relationship (for instance, transfer of property, lump sum payments, maintenance and the like). The Scottish Executive has proposed to undertake research into the cost of such a scheme and its efficacy in resolving the issues faced by cohabitants. The Westminster Government proposes to await the outcome of this research, and for the meantime will take no further action. Thomas Duggins is a solicitor at Charles Russell LLP Tel: 020 7203 5341 Email: thomas.duggins@charlesrussell.co.uk Private Client Business [2011] Issue 3

1. Lloyds Bank Plc v Rosset [1991] 1 A.C. 107; [1990] 2 W.L.R. 867 HL. 2. Lloyds Bank [1991] 1 A.C. 107; [1990] 2 W.L.R. 867 HL. 3. Oxley v Hiscock [2004] EWCA Civ 546; [2005] Fam. 211. 4. Oxley [2004] EWCA Civ 546; [2005] Fam. 211. 5. Although this approach resembles a resulting trust, a distinction must be made. The court only found that a result similar to a resulting trust was “fair”, not that a resulting trust existed. 6. Stack v Dowden [2007] UKHL 17; [2007] 2 A.C. 432. 7. See Densham (A Bankrupt), ReDensham (A Bankrupt), Re [1975] 1 W.L.R. 1519; [1975] 3 All E.R. 726 Ch D. 8. See Springette v Defoe [1992] 2 F.L.R. 388; [1992] 2 F.C.R. 561 CA (Civ Div). 9. See Edward Nugee QC in Basham (Deceased), Re [1986] 1 W.L.R. 1498; [1987] 1 All E.R. 405 Ch D. 10. However, see Chadwick L.J. in Oxley [2004] EWCA Civ 546; [2005] Fam. 211 at [42]. 11. Gillett v Holt [2000] 3 W.L.R. 815; [2000] 2 All E.R. 289 CA (Civ Div). 12. Trust of Land and Appointment of Trustees Act 1996 ss.14 and 15. 13. Trust of Land and Appointment of Trustees Act 1996 ss.14 (2)(b). 14. Trust of Land and Appointment of Trustees Act 1996 ss.12 and 13. 15. See White v White [2001] 1 A.C. 596; [2000] 3 W.L.R. 1571 HL, where Lord Nicholls said that a judge would always be well advised to check their tentative views on the distribution of assets against the “yardstick of equality of division” in ancillary relief claims.

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REUTERS: Darren StapleS

EQUAL PAY: AN IDS EMPLOYMENT LAW HANDBOOK UNDERSTAND THE LEGAL PRINCIPLES GOVERNING EQUAL PAY • Deals with the concepts of ‘like work’; ‘work rated as equivalent’ and ‘work of equal value’ • Clarifies the enforcement of equal pay claims in employment tribunals and the civil courts • Discusses the scope of the ‘material factor defence’ open to the employer


CONDITIONAL FEE AGREEMENTS IN HOUSING DISREPAIR CASES

CONDITIONAL FEE AGREEMENTS IN HOUSING DISREPAIR CASES David Marshall In this article, David Marshall outlines the introduction and development of conditional fee agreements (CFAs) and identifies disincentives to the use of CFAs in housing disrepair cases. He considers the future for use of CFAs in housing cases in light of changes to CLS funding proposed by the Government in its legal aid Green Paper.

Until 1995 charging fees for civil litigation which were contingent upon the result was unlawful. This prohibition often caused problems for impecunious clients who for one reason or another fell outside the scope of the legal aid scheme. In the early 1990s solicitors began to recognise the bars to access to justice that were raised by a legal requirement for such clients to fund litigation costs up-front. Indeed it was in housing related matters, claims under the Environmental Protection Act 1990 that innovative solicitors first sought to agree a retainer whereby the client paid normal fees only if the case was won whilst the solicitor was limited to Green Form only costs if the case were lost.1 The Courts and Legal Services Act 1990 introduced the concept of a legal conditional fee agreement (“CFA”) but this was not brought into force until 1995. CFAs applied to all civil litigation, but in practice were at first almost exclusively utilised for personal injury litigation. Why was this? Firstly, most housing claims suitable for CFAs (i.e. where damages are awarded and/or where “between the parties” costs orders are routinely made) involve disrepair of tenanted property. Most housing claimants in 1995 were still likely to be financially eligible for legal aid. And between 1995 and April 1, 2000 the success fee under the CFA was payable by the client out of the damages (although the Law Society recommended that solicitors imposed a cap of 25 per cent). It was, therefore, clearly in the claimant’s interest to apply instead for legal aid if they were financially eligible for it as there was likely to be very little deduction from damages by way of the legal aid statutory charge; certainly very rarely as much as 25 per cent. Similarly, many personal injury victims continued with legal aid. It was personal injury claimants who were not financially eligible for legal aid (because of earnings or capital) who brought the cases funded by CFAs - this applied much less frequently to housing disrepair claimants, almost by definition. > today s s olic itor. co . u k

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CONDITIONAL FEE AGREEMENTS IN HOUSING DISREPAIR CASES > The Labour government brought in the Access to Justice Act 1999 which made fundamental changes to the conditional fee regime. In particular, the new Act introduced the concept of “recoverability”. In other words “additional liabilities” (namely success fees and after the event insurance premiums) were recoverable as items of costs from the losing party. This meant that in most cases the successful claimant would lose none of their compensation as all of the costs, including the success fees, would be payable by the losing defendant. At the same time, personal injury litigation was removed from the scope of legal aid. Housing litigation, however, remained in scope. For a CFA to be lawful it was essential that the solicitor complied with the strict terms of the 2000 Regulations.2 And, as the Court of Appeal in Hollins v Russell3 made clear, unless the deviation from the 2000 Regulations was minimal, a breach of the 2000 Regulations rendered the entire retainer unlawful and no costs at all could be recovered. In the memorable words of Dyson L.J. this was “pour encourager les autres ”. The full effect of this decision was mitigated in later appeals, but the so-called “costs wars” caused considerable uncertainty for solicitors and clients and brought the system of costs assessment into disrepute. The government was, however, determined to see its reforms work and in 2005 they introduced new Regulations which revoked the 2000 Regulations4 , leaving all client protections to the Solicitors’ Code of Conduct.

“The ‘costs wars’ and the failed involvement of claims management companies clearly acted as disincentives to the use of CFAs by solicitors in housing cases.” As housing work had remained within the scope of legal aid, most housing lawyers had continued to use public funding for their disrepair and other housing damages claims rather than CFAs notwithstanding the changes to recoverability. However,

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some claims management companies saw the potential for mass disrepair actions against some local authorities and sought to generate work by leafleting. It is unlawful to pay a referral fee in respect of a publicly funded case. The solicitors to whom the cases were referred therefore wished to enter into CFAs, but sought to justify the reasons they did so with clients who would otherwise be eligible both financially and on merits grounds for public funding. The costs judges gave short shrift to their arguments holding that the arguments deployed in favour of a CFA and against legal aid were disingenuous or specious, finding that advice had not been properly given in respect of legal aid which was required under the 2000 Regulations.5 All costs were therefore disallowed. The “costs wars” and the failed involvement of claims management companies clearly acted as disincentives to the use of CFAs by solicitors in housing cases. However, financial eligibility for legal aid was falling fast throughout the period and many tenants with disrepair claims were ceasing to be eligible, or were only eligible with significant monthly contributions. In addition, the various attempts by government to reform legal aid franchising led to firms either losing legal aid contracts or deciding not to bother to continue with legal aid because of the changes to the contracts imposed by the Legal Services Commission. In the new environment, the courts became more willing to uphold CFAs even where legal aid might have been available.6 And the 2005 Regulations have meant that the effect of non-compliance was usually far less draconian. However, the uptake of CFAs in housing cases is still low. There remain particular difficulties. First, even after 2005, unlike virtually all routine personal litigation, there were no fixed success fees for housing litigation and therefore there was the potential for an argument as to the level of success fee in every concluded successful case. Secondly, disrepair cases often arise in the context of a counterclaim to a claim for rent arrears and/or possession. Some thought is therefore needed as to how likely there would be “success” and how this should be defined in the CFA. Thirdly, and perhaps most importantly, after the event insurers did not find this market particularly attractive. As outlined in the evidence in

Sibthorpe v Southwark,7 after the event insurance was almost impossible to find or only available at a very high premium. This meant that even if the solicitor was prepared to accept the risks under a CFA, the client would still be liable to pay adverse costs if the case were lost. In Sibthorpe, the solicitors agreed to indemnify the client against the possibility of an adverse costs order in the proceedings. The local authority challenged this saying that the arrangement was either champerty or unlawful insurance. The Court of Appeal held that it was lawful to offer an indemnity against adverse costs in the circumstances of such housing disrepair claims.8 THE FUTURE FOR CONDITIONAL FEE AGREEMENTS AND HOUSING DISREPAIR CASES In their recent consultation papers, the government has made it perfectly clear that they believe that CFAs can take the place of legal aid in a wide variety of civil litigation. In particular the Legal Aid Green Paper suggested that legal aid would be withdrawn for all but the most “serious” cases of disrepair.9 Under the Jackson Green paper, published at the same time, the government also proposed significant changes to CFAs.10 In particular, the government has said that it will end recoverability of additional liabilities. This would mean that any success fee would be payable by the client out of damages. Unlike personal injury litigation, the government does not propose to legislate a cap on the maximum proportion of damages that can be used to pay success fees. However, the government proposes a 10 per cent increase in general damages. In housing cases, it is doubtful that this will be sufficient to recompense the claimant for the expense of having to pay a success fee out of those damages.

“At the very least, all firms should insist that at least one person other than the conducting fee earner agrees to the firm accepting the risks of a CFA case”


There remains the problem of after the event insurance. It remains difficult and expensive to obtain for housing litigation. Once the government proposals have been implemented, the premium will no longer be recoverable from the losing opponent and therefore will have to be paid by the client out of damages. This is likely to be completely uneconomic. The government had originally proposed that “qualified one way cost shifting” would apply to housing cases as well as to personal injury. This would have meant that unless the claimant was fraudulent or “conspicuously wealthy” they would not have to pay any adverse costs if the case were lost. They would therefore have had no need for after the event insurance. However, in the response to the consultation on the Jackson proposals, the government has decided not to extend qualified one way cost shifting beyond personal injury in the first instance. Unless these proposals are modified during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill 2011, the government would therefore be proposing to remove large numbers of housing disrepair cases from legal aid, but to leave the claimants open to adverse costs orders or, if they can find after the event insurance, paying after the event insurance premiums out of damages, or looking for solicitors who are prepared to personally give a costs indemnity against adverse costs. It seems likely that the government will have to either extend qualified one way shifting or come up with some other solution if access to justice is not to be denied to those people

who suffer less than “serious” disrepair. If they do so, housing lawyers will have to consider using CFAs far more widely if they wish to represent such clients in the future. USING CFAs IN PRACTICE The key skill required for CFAs is excellent risk assessment. It is absolutely crucial to keeping a practice solvent that only cases with a reasonable prospect of success are taken on, and that cases which initially look good but then get more risky are jettisoned quickly once the prospects of success fall below 50 per cent. In theory, these risk assessment skills were also needed for legal aid, but in practice they have to become much sharper for CFA work. At the very least, all firms should insist that at least one person other than the conducting fee earner agrees to the firm accepting the risks of a CFA case. It will also be necessary for each firm to work out a sensible basis for setting success fees. As these are not subject to any of the fixed success fee regimes that have implemented for personal injury, it will be necessary for firms to look at their success rates so as to be able to justify success fees if challenged by the client. In particular, the experience with personal injury success fees has shown that many cases are abandoned early on and the lost costs in abandoned cases have to be factored in to the level of success fees in the winning cases if the solicitors are to run a revenue neutral CFA business. Analysis of success rates and fees earned under old case-loads (even if conducted under legal aid) is critical to future success and indeed survival.

The new regime proposed by the government offers some prospect of mitigating the loss of legal aid for housing disrepair cases. It seems inevitable that clients will be worse off than at present. However, they will be even worse off if they are not able to litigate at all because solicitors do not take the cases under CFAs. Journal of Housing Law. [2011] Issue 4

1. British Waterways Board v Norman (1994) 26 H.L.R. 232 and Hughes v Kingston Upon Hull City Council [1999] Q.B. 1193; [1999] 2 W.L.R. 1229; (1999) 31 H.L.R. 779 2. Conditional Fee Agreements Regulations 2000 (SI 200/692). 3. Hollins v Russell [2003] EWCA Civ 718; [2003] 1 W.L.R. 2487; [2003] 4 All E.R. 590 4. Conditional Fee Agreements (Revocation) Regulations 2005 (SI 2005/2305). 5. Hughes & Ors v London Borough of Newham [2005] EWHC 90019 (Costs); Bowen v Bridgend County Borough Council [2004] EWHC 9010 (Costs). 6. Birmingham City Council v Crook [2007] EWHC 1415 (QB); Birmingham City Council v Forde [2009] EWHC 12 (QB); [2009] 1 W.L.R. 2732. 7. Sibthorpe v Southwark LBC [2011] EWCA Civ 25; [2011] 2 All E.R. 240. 8. See further D. Smith and R. Gibson, “Champerty and maintenance -- old doctrines in a modern funding world” at p.86 of this issue. 9. Proposals for the Reform of Legal Aid, Consultation Paper CP10/12, Ministry of Justice, November 2010, para.4.78. 10. Proposals for Reform of Civil Litigation Funding and Costs in England and Wales -- Implementation of Lord Justice Jackson’s Recommendations, Ministry of Justice, November 2010. See also Reforming Civil Litigation Funding and Costs in England and Wales -- Implementation of Lord Justice Jackson’s Recommendations. The Government Response, Ministry of Justice, March 2011. © 2011 Sweet & Maxwell and its Contributors

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WESTLAW UK CASE COMMENT

PERSONAL INJURY: ROAD TRAFFIC ACCIDENTS nicholas bevan Case: Goad v Butcher [2011] EWCA Civ 158 (CA (Civ Div)) Comments on the Court of Appeal decision in Goad v Butcher on whether the driver of a tractor and trailer had, as asserted by the claimant, breached the Highway Code and acted negligently by turning a corner early and colliding with the claimant on his motorbike. Considers whether the claimant, in travelling at an excessive speed, was contributory negligent.

On 15 June 2006 the claimant, Nicholas Goad, was riding his motorcycle along the B1411 road from Little Downham in the direction of Ely when he collided with a tractor and low-loader trailer driven by the first defendant, Peter Butcher. Mr Goad was seriously injured as a result. The accident occurred when Butcher was turning right into a lane, the entrance to which was splayed and divided. It had slip roads with entry and exit lanes on each side of a triangular grass island. In making the turn, Butcher had cut the corner and entered the exit lane, rather than the entry lane, and so was on the wrong side of the lane. At the point where Butcher had begun his turn he could see along the road for a distance of 110m. If he had used the correct slip road he would have been able to see a distance of 130m. As Butcher was making the turn, Goad was approaching from the other direction travelling in excess of the speed limit at between 55 and 65mph. He braked heavily and lost control. His motorcycle left the road and passed over the grass island before colliding with the tractor. By that time, Butcher had almost completed the turn and Goad would have had room to pass behind the trailer safely if he had not lost control. At trial HH Judge Seymour QC considered the significance of Butcher cutting the corner and concluded that it had not caused the accident. He stated that the real question was whether it had been negligent of Butcher to make the turn into the lane at the time and place he had, not whether, in the course of doing what he had, he had infringed the provisions

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of the Highway Code in a respect that had no relevance to the accident. The judge dismissed the claim holding that Goad had been driving too fast and was entirely to blame for the accident. Goad appealed contending that, whilst the judge had asked himself the right question, he had erred in considering Butcher’s breach of the Highway Code irrelevant. He submitted that Butcher had been negligent in starting his turn too early, failing to reach the point at which his view of oncoming traffic would have been at his best and, in consequence, failing to observe the road markings at the entrance to the lane and cutting the corner, contrary to para.1561 of the Highway Code. The Court of Appeal held that a failure to observe the Highway Code might be evidence of negligence, but whether it was would depend very much on the circumstances in which the act in question was committed and who the claimant was. Here cutting the corner would have been negligent towards any road user seeking to leave the lane by turning left, but not negligent towards a road user seeking to leave by the slip road in the other direction. So the judge had been right, as Goad conceded, to have identified the real question as being whether it was negligent of Butcher to make the turn into the lane at the time and place he had. It was confirmed that Butcher had a duty to take reasonable care to avoid causing injury to other road users whom he should reasonably have foreseen might

be affected by his actions. That meant he had a duty to act as a reasonably prudent and careful driver of a slow-moving and lengthy vehicle. When undertaking a manoeuvre which necessarily involved obstructing an oncoming lane, albeit for a short time, he had to take account not only of the length and speed of his own vehicle but the risk that there might be another road user, then out of sight, who was close enough to come into view as soon as he started making the turn. He also had to make allowance for the fact that the road user might be exceeding the speed limit. The court concluded that whilst it was arguable that a driver should put himself in the best possible position to assess the risks posed by oncoming traffic, a driver would not be held negligent simply for failing to achieve that. What mattered here was whether a view along the road of 110m was sufficient for a reasonably prudent driver of the type of vehicle Butcher was driving. They held that in the circumstances, visibility of 110m was sufficient on what was a clear summer’s day with a dry road and Butcher was not negligent in failing to foresee that Goad might be travelling at a speed so far in excess of the limit that he would be unable to control his machine and avoid a collision once the tractor and trailer came into view. Accordingly the judge was entitled, on the evidence, to hold that the accident was caused solely by Goad’s excessive speed. The appeal was dismissed.2 >

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WESTLAW UK CASE COMMENT > COMMENT The outcome of this majority decision turned on causation and the central issue was whether Mr Butcher was negligent in making his turn when and where he did. It is clear that both the claimant and defendant had infringed the Highway Code; Mr Butcher, for driving his tractor and low level trailer into an exit lane that lead from the minor road into which he was turning. He was attempting to shorten his journey but at the expense of reducing the line of vision along the road ahead. Mr Goad was also contravening the Highway Code for riding his motorbike at approximately 60mph in a 40mph zone. However, we know from the recent Court of Appeal ruling in Lambert v Clayton3 that one cannot infer negligence purely from a breach of the Highway Code. That case also featured a speeding motorcyclist colliding with a car that was turning across its path at a junction. In that particular case, the motorcyclist was held entirely responsible for the collision. But we also know from Quinn v Scott4 that high speed is not of itself evidence of negligence. Even so, the fact that one party may be speeding or otherwise contravening the Highway Code is still a relevant factor that can be taken into account when deciding whether a driver has been negligent, Powell v Phillips.5 In this case, it was determined that had Mr Butcher taken the correct turning, which lay only a few metres further along, he would have a much better vantage point from which to make the turn. Instead of being able to see only 110m ahead, he would have had another 20m of vision ahead. It is significant that the appellant never sought to argue that 110m visibility was in itself insufficient to enable Mr Butcher to make his turn in safely. The majority view of the Court of Appeal was that Mr Butcher’s breach of the Highway Code was a red herring. Turning into the exit lane, because it was closer to him, instead of using the correct entry lane, could only constitute a breach of duty of care to road users seeking to emerge from that exit; there were none. It was acknowledged that in turning a long and slow moving vehicle, the reasonable and prudent driver ought to have realised that he was effectively obstructing the road and that he had to make allowance for the fact that other road users might use excessive speed along this stretch of road. However, Moore-Bick and Mummery L.JJ. were both of the view that it was safe enough at 110m visibility

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for Mr Butcher to have executed his turn. To contend culpability for executing his turn early, where there was less visibility, was in their view to argue a counsel of perfection. Sir Rupert Jackson took a different view. In his dissenting judgment, he opined that although not every cutting of a corner was negligence, it had been negligent to attempt to turn this tractor and long trailer, travelling at 4mph, then and there. The obstruction it caused constituted a foreseeable risk to oncoming drivers; speeding drivers even. Although 110m fell within the typical stopping distance of a car travelling 60-70mph, that did not apply to motorcycles which require a much greater distance. Sir Rupert thought that the claimant’s appeal ought to have been allowed, subject to a 75 per cent reduction for Mr Goad’s contributory negligence. PRACTICE POINTS • This judgment demonstrates how fact specific these cases are and how unpredictable the outcome can often be. Sir Rupert took the view that the reasonably prudent driver would have borne in mind the fact that it was highly likely that other drivers might speed on this road and that in driving such a long vehicle at such a slow speed, special care was required and not given. •

The other lesson to take from this case is not to get overly distracted by whether or not a party’s conduct is a breach of the Highway Code. This will usually be of secondary importance. One should concentrate instead on the tort law matrix: did the alleged breach of duty cause the loss or damage? Enquire whether, but for the negligent act, the accident would have been avoided or ameliorated. On the facts of this particular case, the Court of Appeal had divergent views.

Nicholas Bevan J.P.I. Law [2011] Issue 3

1.

Highway Code para.156: “Wait until there is a safe gap between you and any oncoming vehicle. Watch out for cyclists, motorcyclists and pedestrians. Check your mirrors and blind spot again to make sure you are not being overtaken, then make the turn. Do not cut the corner.”

2. Goad v Butcher [2011] EWCA Civ 158 Jackson L.J. dissenting. 3. Lambert v Claytont [2009] EWCA Civ 237 4. Quinn v Scott [1965] 1 W.L.R. 1004; (1965) 109 S.J. 498 per Glyn-Jones J. 5. Powell v Phillips [1972] 3 All E.R. 864.

The Journal of Personal Injury Law is available in full-text on westlaw.co.uk


JURORS AND THE INTERNET Concern about juror use of the internet has been growing for some time. The issue was investigated by Professor Cheryl Thomas in her report last year for the Ministry of Justice, Are Juries Fair? She found that in high profile cases 12 per cent of jurors said they looked on the internet for information about the cases on which they were serving, and 26 per cent said they saw media reports on their cases during the trial. Thomas noted that her findings raised a number of important other questions, such as how jurors use the internet to access information, and whether they use social networking sites to discuss cases. The latter issue arose in the recent contempt of court case R. v Fraill and Sewart [2011] EWCA Crim B2, where a juror conducted an exchange on Facebook with an acquitted defendant during which she discussed the jury’s ongoing deliberations on charges against another defendant. Sentencing her to eight months custody for contempt the Lord Chief Justice, Lord Judge, referred to misuse of the internet by a juror as “a most serious irregularity” and described her conduct as constituting “flagrant breaches of the orders made by the judge for the proper conduct of the trial”. REUTERS/Akhtar Soomro

JURORS AND THE INTERNET As the growth in popularity of the internet and social networking sites continues, so do concerns that jurors researching and posting information on the trials that they are involved in, could threaten the continued existence of jury trial. Criminal Law Review investigates.

This case is almost certainly not an isolated incident. An investigation by The Times (June 13, 2011) claimed to have found more than 40 examples of public postings and statements that appeared to be in breach of the law. The article noted that these examples were on open Facebook pages and went on to suggest that they represent probably only a fraction of what occurs on pages limited to friends of jurors. Assuming that this is substantially correct, and certainly many judges accept that misuse of the internet by jurors is increasing, how concerned should we be? Is the continued existence of jury trial threatened by widespread disregard by jurors of the instruction to decide a case only on the evidence presented in court and not to discuss the case with anyone other than the other members of the jury in the privacy of the jury room?

“If jury verdicts are to retain their legitimacy it is essential that such discussions with non-jurors do not take place.” An answer to this question might start by distinguishing between the two types of misuse. It has probably been the case ever since jury trial began that jurors have occasionally discussed with partners and friends details of cases they are trying, despite warnings from trial judges not to. The existence of > today s s olic itor. co . u k

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JURORS AND THE INTERNET

> such intimate and private conversations almost never comes to light, and in that sense they do not represent a systemic threat to the integrity of jury trial. The difference with use of the internet for this purpose is of course that the exchanges have a degree of publicity and a degree of permanence. Their existence is now much more likely to be discovered. If they are discovered to have taken place during a trial they may afford grounds for declaring a mistrial or quashing a conviction. If jury verdicts are to retain their legitimacy it is essential that such discussions with non-jurors do not take place. It would seem that the only feasible way they can be prevented is by appropriate warnings from trial judges, plus the publicity attached to contempt sanctions against jurors found to have ignored the warnings. As a method of bringing home the seriousness of the warning perhaps it should be given in writing as well as orally, and it should spell out exactly what jurors should not do in terms of postings, tweets and blogs. Jurors might then be required to give written undertakings that they understand the warning and agree to abide by it. Searching the internet for information relevant to the case is a more complex issue. The standard instruction is that jurors should decide the case on the evidence presented in the trial, but we should remember that in the evaluation of evidence jurors bring, and are expected to bring, a collective mass of knowledge and experience of human behaviour and the world in general. This is often hailed as one of the strengths of jury trial. That knowledge and experience will derive from a more or less infinite number and variety of sources, none of which may have been the subject of evidence. It would not be practicable or even desirable to attempt to limit these sources. In this respect the internet is no different from print sources that juries have had access to for centuries.

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It is a different matter if jurors are trying to discover specific additional facts about a particular case that are not given in evidence. This carries obvious dangers if the facts in question are prejudicial to one or more of the parties. There are, for example, well-known cases where a juror has acquired knowledge of a defendant’s previous convictions or bad character (R. v Thompson (Frank William) [1962] 1 All E.R. 65; R. v Box (John) [1964] 1 Q.B. 430). Again, a strong warning about introducing any extraneous factual material into jury discussions is needed. One idea that may now be worth considering is for the prosecution and defence to conduct their own internet searches on publicly accessible sites before the trial for material that inquisitive jurors might locate. If a trial judge were alerted to the existence of problematic material before the trial it might be possible take steps to deal with the problem. Criminal Law Review, August 2011 Criminal Law Review is available in full text on westlaw.co.uk


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AUTHOR PROFILE

JEREMY WOOLF Jeremy Woolf is a Barrister at Pump Court Tax Chambers and advises on transactions, tax disputes, including judicial review, professional negligence, mistake and rectification applications that raise tax issues. He has contributed to Zamir & Woolf: The Declaratory Judgment for almost 20 years. COULD YOU TELL US ABOUT YOUR PROFESSIONAL BACKGROUND, AND HOW YOU CAME TO BE A BARRISTER? I have a degree in Law and English and American studies from the University of Sussex and an LLM from Cambridge. I have always enjoyed arguing points, which is the reason why I chose to become a barrister rather than a solicitor. YOU SPECIALISE IN WORK RELATING TO TAXES. WHAT ASPECTS OF THIS INTEREST YOU THE MOST IN YOUR PRACTICE? I chose to practice tax because of the variety of work that it generates. The Government chooses to tax most activities in life so I find myself advising on a large number of different issues that often raise interesting legal issues. As a result I very seldom get bored by my work. Because HMRC is a public body, I was initially drawn to the public law issues that arise from my work. However, European Community law issues increasingly arise in both the direct and indirect tax areas of my practice and I also find those issues interesting. I have always found the interrelationship between UK law and EC law a fascinating issue. I have also on occasion had to advise and argue about issues related to the European Convention of Human Rights. CAN YOU DESCRIBE THE MOST INTERESTING CASE YOU HAVE WORKED ON? Probably the most interesting case that I have been involved on was Pepper v Hart where the House of Lords reconsidered the rule about allowing Hansard to be cited. As well as altering the law on that issue, it also raised an interesting issue about what was meant by the cost of providing a benefit to schoolmasters of having their children educated. However, I was lead by Stephen Oliver QC and Anthony Lester QC so I did not have to argue the issues before the House of Lords. The next most interesting case, and it is a case where I played a more direct role as an advocate, was in the European Court for Abbey National about the scope of the exemption from VAT for fund management. Abbey National also instructed advisors from other jurisdictions in the EU and it was very interesting to hear their input on the issues raised.

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HOW HAS THE PRACTICE CHANGED FROM WHEN YOU FIRST STARTED OUT? There has been an increase in the variety of work. In particular there has been an increase in the number of European Community and Human Rights cases. There has also been a growth in professional negligence work and recently an increasing number of applications to set aside transactions on the basis of mistake. There has probably been a reduction in aggressive tax planning. WHAT DO YOU THINK ARE THE KEY CHALLENGES FACING PRACTITIONERS TODAY? Public funding is obviously a big issue for a lot of the legal profession. While it may have less direct impact on tax barristers, it also impacts on the tax bar because cuts at HMRC impacts on their staff moral and their capacity to handle cases in the manner in which they should ideally be conducted. The cuts in the funding to the Courts Service and tribunal system are also likely to impact on the services that they provide. YOU HAVE WORKED ON ZAMIR & WOOLF: THE DECLARATORY JUDGMENT FOR ALMOST 20 YEARS. WHAT LED YOU TO BECOME INVOLVED? My father asked if I would be interested in assisting him to produce the second edition after he met Prof Zamir who had produced the first edition 30 years earlier. WHAT ARE THE KEY RECENT DEVELOPMENTS THAT HAVE AFFECTED THE CONTENTS OF ZAMIR & WOOLF: THE DECLARATORY JUDGMENT? The last edition came out shortly after the introduction of the Civil Procedures Rules and the Human Rights Act. During the succeeding ten years there have not been any profound developments. However, there have been a number of cases where the Courts have been taking an increasingly broad view of their jurisdiction. So it can safely be said that there are many instances when the Courts are prepared to grant declarations now when they would not in the past. HOW DO YOU MANAGE TO JUGGLE YOUR TIME BETWEEN WRITING AND YOUR DAY-TO-DAY WORK? I have worked on the book at weekends and nights if I do not have to do other work. Some work needed to be done in the library and I would try and do that between 1-2pm. DO YOU HAVE ANY OTHER PROJECTS ON THE HORIZON? I have been asked to contribute a chapter on tax appeals to a book on civil appeals. HOW DO YOU RELAX IN YOUR SPARE TIME? I like to spend my free time with friends and family, and visiting historic monuments. I am interested in current affairs, food, wine and the arts. I am currently the Chair of the European and Human Rights sub-committee of the CIOT and represent that organization on the Indirect Tax Sub-Committee of the CFE, which represents European Tax professionals so I also have to spend time in those capacities. ZAMIR & WOOLF: THE DECLARATORY JUDGMENT IS OUT NOW Order your copy through your Account Manager, call 0845 600 9355 or complete the order form attached

ZAMIR & WOOLF: THE DECLARATORY JUDGMENT Jeremy Woolf Given the emphasis of the Civil Procedure Rules on settlement and speedy resolution of disputes, declaratory proceedings are increasingly important. This new 4th edition of the definitive work on the subject explains the wide scope of the declaratory judgment as a public law remedy for both individuals and public bodies and shows how it can be used. References throughout will be made to the changes brought about by the HRA and amendments to the Civil Procedure Rules, and cases and legislation will also be updated. All the information you need: • Looks at the development of the declaration in both private and public law proceedings • Goes through statutory provisions and case law to illustrate when a declaratory judgment might be granted • Clearly shows the advantages of using declaratory proceedings. In particular the importance of the discretionary element is given full consideration • Focuses on procedure, from commencement in the High Court to Judicial Review • Shows practitioners how to bring a case before the court • Explains the jurisdiction of the High Court, county courts and tribunals to grant declarations • Examines in detail who is entitled to bring proceedings for declaratory relief – both claimant and defendant. A separate chapter is provided on each • Makes it clear which cases can and cannot be dealt with • A separate chapter provides a study on the declarator as a matter of Scottish law • Extracts of statutes are annotated September 2011 978 0 414 04135 6

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Today's Solicitor Issue 8