It is difficult not to have sympathy with busy doctors who make mistakes – but, when considering whether to seek compensation, it is important to remember that they are insured. In one case, a girl who was left severely disabled by a family GP’s misdiagnosis of meningitis won more than £4.5 million from his professional insurers.
The girl was just 15 months old when the GP diagnosed the potentially fatal bug as a simple ear infection and failed to refer her immediately to hospital. Her lawyers blamed the resulting delay in treatment for the brain damage she suffered. Although able to walk independently, she suffered visual, hearing, speech and cognitive impairments and would require 24-hour care for the rest of her life.
Whilst the GP’s liability was disputed, his insurers agreed to settle the girl’s case on the basis of two thirds of the full value of her claim. She had a life expectancy to the age of 83 and the lump sum payment would be used to fund suitable housing, equipment and professional care for as long as she lived. £120,000 of the total would be paid to the girl’s parents as some compensation for the care they had given her. The settlement, which was negotiated by the girl’s legal team, was approved by the High Court.
When companies fall into insolvency the courts are often heavily involved in ensuring that creditors’ interests are properly protected. That was certainly so in one case in which the High Court sanctioned the appointment of two additional administrators to assist in the immense task of settling the affairs of a troubled national retailer.
The retailer reported a trading loss of £69 million in 2014 and, after that, its financial position only got worse. Its sole shareholder sold it to another company for a nominal sum and, as part of the deal, agreed to write off £215 million of inter-company debt. The seller retained a £40 million floating charge over the retailer’s assets in respect of other debts.
Trade did not improve and the retailer eventually entered into a company voluntary arrangement with the approval of creditors. A hoped-for refinancing package subsequently failed to materialise and two administrators were appointed by the board. The retailer’s largest unsecured creditor was the Pension Protection Fund (PPF), which was owed an estimated £571 million. It was anticipated that sufficient funds would be raised to satisfy the seller’s floating charge in full.
The administrators had continued to trade the business on the basis that that was likely to achieve a better outcome for creditors as a whole than a swift winding up of the retailer. At the PPF’s behest, the administrators had launched an inquiry into the company’s affairs and, in particular, the circumstances of the retailer's sale.
The administrators were fully engaged in the task of concluding trading activities and asset realisations ahead of a creditors’ voluntary liquidation. In those circumstances, the Court approved the appointment of two further administrators so that the inquiry could be pursued without delay into any possible claims that the retailer may be entitled to bring against its current or former directors.
Neighbours’ disputes can get badly out of hand – but lawyers are trained to defuse ill-feeling and foster compromise. In one case, a couple who engaged in a fruitless six-year boundary dispute, largely without legal representation, ended up having to pay their opponents’ substantial legal bills.
The couple’s home bordered an 800-acre agricultural estate. The owners of the latter took them to court, claiming that they had encroached over the boundary and absorbed three parcels of land into their garden. The couple began by representing themselves and instructed lawyers only when the case was well underway.
Following three lengthy hearings – two in the county court, interspersed by another in the Court of Appeal – the couple were comprehensively defeated. After hearing expert evidence and analysing documents and ordnance survey maps dating back to the 1920s, a judge found that the boundary lay along the line of a hedge. That meant that the disputed parcels of land all fell within the estate.
The facts of the case emerged as the Court of Appeal refused the couple permission to challenge that ruling. The judge had dealt with the case with conspicuous care and his assessment of the evidence could not be faulted. Given the length and complexity of the case, the legal costs incurred by the owners of the estate – payable by the couple – were likely to run into six figures.
Seek help and advice at an early stage and avoid unnecessary legal costs. If you would like to discuss a boundary dispute matter, please contact Sundeep Bilkhu on 0121 698 2200 firstname.lastname@example.org
Judges working together across national borders to achieve justice in family cases is one of the advantages of EU membership, and it is to be hoped that the arrangements in place are not disturbed by Brexit.
Recently, the Supreme Court considered an application to enforce a judgment made by a Romanian court concerning a child of Romanian parents who lived with his mother in England.
The child was born in Romania but came with his parents to live in this country. The parents' relationship later broke down and the father returned to his homeland. He commenced divorce and child custody proceedings in Romania and a Bucharest court directed that the boy should live with his father.
The latter applied to the High Court under the Brussels II (Revised) Regulation (BIIR) for recognition and enforcement of the Romanian judgment in England and Wales. That application was, however, refused on the basis that the Romanian court had not given the child an opportunity to express his wishes and feelings in respect of whether he preferred to live with his mother in England or with his father in Romania. That ruling was subsequently upheld by the Court of Appeal.
In striking out the father's challenge to that decision, the Supreme Court found that it had no jurisdiction to entertain his appeal. It noted that BIIR was intended to provide a speedy and essentially administrative process by which judgments given by the courts of member states could be recognised and enforced elsewhere in the EU. That objective would not be advanced by the availability of too many potential avenues of appeal.
Says Amanda Holland,
Roughly one in six UK marriages now involves a foreign national and one result of that has been that cases involving childcare arrangements on the break-up of relationships with an international dimension are now routine.
Our family law specialists can assist with any aspect of the law relating to the breakdown of a family relationship.
For help or advice on any family law matter, contact a member of our Family Law Team.
It may seem tempting to choose a loved one to manage your affairs if you lose the ability to make decisions for yourself. However, one case in which a woman was jailed for fleecing a 100-year-old relative of her savings showed that it is often wiser to trust a professional.
The woman had been appointed to supervise her step-grandmother’s finances under a lasting power of attorney. The law required her to perform that role selflessly for the pensioner’s benefit. However, whilst the old lady was in a nursing home, the woman transferred £105,000 from her accounts, part of which she spent on herself. She was convicted of fraud following a three-week trial and jailed for 18 months.
The facts of the case emerged as the woman challenged her conviction before the Court of Appeal. Acting in person, she argued that all her dealings with her relative’s money had been with the latter’s knowledge and consent. Although she had perhaps been disorganised, she insisted that she had not been dishonest.
Dismissing her appeal, however, the Court rejected arguments that the trial judge had failed to properly sum up the case to the jury or that she been let down by her defence lawyers. Although the woman profoundly disagreed with the jury’s verdict, that could not be a valid ground of appeal.
Many people believe that everything on the Internet should be free. However, one case in which a businessman received a four-year jail term for wholesale breaches of film industry copyrights showed how very wrong that assumption is.
The man made £280,000 in advertising revenue from operating a series of websites which enabled Internet users to download pirated copies of films, in some cases before they were officially released. Film studios estimated that his activities over a five-year period had cost them in the region of £12 million.
He ignored a cease and desist notice served upon him by the Federation Against Copyright Theft and twice migrated his operations between websites in an attempt to avoid detection. He was ultimately jailed after pleading guilty to two charges of conspiracy to defraud and one of concealing criminal property. The latter count related to more than £80,000 in cash found at his home.
In challenging the length of his sentence before the Court of Appeal, his lawyers pointed to certain medical and psychological difficulties from which he suffered. Despite the large criminal profits generated, they argued that he was not interested in money and did not lead a lavish lifestyle. In rejecting his appeal, however, the Court noted that the offences were sophisticated, persistent and revealed a high level of culpability.
The complexity of the law relating to people of diminished mental capacity has long been a bone of contention and, with an ageing population, the courts are being increasingly tied up with mental capacity issues.
One of the most problematic areas is that of the deprivation of liberty of a person who needs to have care provided in a hospital or care home. Deprivation of liberty is never undertaken lightly and a regime called the Deprivation of Liberty Safeguards (DoLS) exists which requires a deprivation of liberty to be authorised by the Court of Protection.
The Law Commission has recently published its interim statement on the DoLS system, which has been widely criticised as being overly complex and excessively bureaucratic and which was described by the Select Committee of the House of Lords as being unfit for purpose. In addition, far more applications under DoLS have been necessary than was anticipated.
The statement finds the DoLS system to be deeply flawed and proposals are to be brought forward for its replacement by a new system, called 'protective care'. It is expected that a final report together with a draft Bill to bring about the necessary reforms will be published in December 2016.
Many companies rely heavily on specialised overseas workers from outside the EU and are permitted to sponsor their entry into Britain. However, the exercise of that privilege is subject to strict safeguards, as one IT company discovered to its cost.
The company employed about 600 people in India and about 50 in the UK. It held a sponsorship licence but was subject to an unannounced inspection by border control officers, who discovered a number of irregularities. After members of the company’s staff were interviewed, the licence was suspended and later revoked.
In one instance, officers reported that a worker who had entered Britain on the basis that he would be working as a software developer at the company’s head office had in fact been deployed to clients’ premises. The company was said to have provided false information, in that the vacancy that the man had been assigned to fill was not genuine. There had also been a failure to report that certain sponsored individuals had not in fact commenced employment with the company.
In dismissing the company’s judicial review challenge to the revocation of its licence, the High Court could find nothing unreasonable or disproportionate in the decision. The move was entirely justified on the evidence and arguments that there had been an unlawful failure to consider the impact on workers’ children were also rejected.
Oral contracts are notoriously fraught with legal difficulty and it is always wise to get a solicitor to accurately record in writing the agreements that you reach. One property company found that out to its cost in a telling High Court case.
The company specialised in promoting its clients’ land for development. It claimed to have reached an agreement with a farming family that it would perform that role in respect of their land and that it was thus entitled to 20 per cent of the proceeds if that land were sold with the benefit of a strategic development allocation.
The company generally entered into written promotion agreements with its clients, but had not done so on this occasion. However, it argued that an oral contract had been agreed with the family at a face-to-face meeting and in a series of telephone calls. The agreement was said to have been sealed by a formal shaking of hands, but the family denied that any such contract had been completed.
In rejecting the company’s arguments, the Court found that, although the family may have been enthusiastic and encouraging at the meeting, it had not been established that they had moved beyond considering the proposed deal. Nothing that was said during the subsequent telephone calls, nor in the whole course of dealings, was of sufficient substance to prove that a binding oral contract had been reached.
In a case of interest to insolvency practitioners, the High Court has come to the aid of a creditor who was left out in the cold when its objection to an individual voluntary arrangement (IVA) was ruled out of contention at a creditors’ meeting.
The creditor claimed to be owed almost £480,000 by a businessman pursuant to a personal guarantee that he had signed in respect of his company’s trade debts. It had submitted a proxy form to the meeting with instructions to vote against the proposal that the businessman should be granted the protection of an IVA.
The businessman disputed the debt on the basis that he had been coerced or unduly influenced into entering into the guarantee or that the creditor had promised to release him from the same. In those circumstances, the chairman of the meeting – an insolvency practitioner – admitted the creditor’s claim with a nominal value of just £1 and the IVA was subsequently approved.
In upholding the creditor’s challenge to that decision, the Court found that its vote should have been given full weight at the meeting. There was no evidence that the businessman had been subjected to duress and the guarantee was clearly valid and enforceable. In the circumstances, the Court found that the proposal should have been defeated and the IVA was overturned.
There was no basis on which it could have been concluded that the creditor’s claim was obviously bad and a more cautious chairman would have marked it as objected to whilst permitting the creditor to vote. In the circumstances, the chairman was ordered to pay half of the creditor’s legal costs of the case.