IT DOES NOT PAY TO BE DISHONEST WHEN MAKING A PERSONAL INJURY CLAIM

As some of you may know I have been harping on about dishonesty in personal injury claims for a while and finally it has happened two Claimants have been found out and have been given prison sentences, for full details go to

 http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=16150:tackling-exaggerated-claims&catid=60:housing-articles

HAVE YOU ENTERED INTO A CONTRACT DUE TO A MISREPRESENTATION

I have been dealing with a very complex case involving misrepresentation and thought I would share a few pointers in respect of this complex are of contract law.

The law in misrepresentation can be very complicated because not only are you dealing with the effects of Contract Law but as a result of losses which may be sustained due to the breach of the contract you have entered into there may also be a claim in Tort. Torts are civil wrongs resulting in an injury or harm constituting the basis for a claim by an injured party.  The first aim of tort law is to provide compensation for the damages suffered by you and to deter others people from committing similar acts. Among the types of damages you as the injured party may recover are: loss of earnings capacity, loss of income etc and these  include both present and future expected losses.

A Misrepresentation is a statement of fact which is made by a party/parties or their agent in respect of the terms etc of a contract which induces another party/ies to enter into the contract but which does not form part of the contract.

The misrepresentation must relate to some existing fact or some past event,  e.g:-    If A was selling a property to B and stated that the area of land being sold was 400 sq metres when it was in fact 300 sq metres then this would be a clear misrepresentation of the facts. 

You must remember that a misrepresentation does not render a contract voidable unless it was intended to cause and has in fact caused the a party to enter a contract.      It must have produced a misunderstanding in your mind, and that misunderstanding must have been one of the reasons you were induced to make the contract.  Therefore you will have no claim for misrepresentation if you did not:

(a) know of its existence

(b) allow it to affect your judgement or

(c) was aware that it was a false statement.

There are various forms of misrepresentation the two most serious of which are

(a) Fraudelent Misrepresentation.  In the leading case of Derry v Peek, Lord Herschell, stated that the definition of fraudulent misrepresentation was if a false statement was made

(1) knowingly, or

(2) without belief in its truth, or

(3) recklessly, careless whether it be true or false’,

The Judge went on to state that the rule is accurately and comprehensively contained in the short formula that a fraudulent misrepresentation is a false statement which, when made, the representor (the person asking you to enter the contract) did not honestly believe to be true.

And;

(b) Negligent Misrepresentation.  For negligent misrepresentation to exist there has to be two elements to an agreement:-

(i)   There must be a fiduciary relationship between you and the party you are entering into an agreement with.   e.g  Between you and your Solicitor, or, you and an architect

(ii)  There must have been a negligent pre-contract statement made.

Two leading cases in negligent misrepresentation are Hedley Byrne & Co Ltd v Heller & Partners Ltd and  Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp and if you read these cases they will give you an overview of what constitutes negligent misrepresentation

You must remember that if you knew that a representation made by a party to an agreement you enter into was false prior to your signing such agreement you cannot state that you have been misled by the statement and therefore cannot bring a claim for damages or have the contract set aside.

A misrepresentation does not render a contract voidable unless it was intended to cause and has in fact caused the a party to enter a contract.      It must have produced a misunderstanding in your mind, and that misunderstanding must have been one of the reasons which induced you to make the contract.  It is the general rule that if you can prove that there has been a misrepresentation then you may be able to have the agreed contract set aside (this is called recission of a contract).  Misrepresentation makes a contract voidable and not void.    DO NOT PRESUME THAT BECAUSE YOU BELIEVE THERE HAS BEEN A MISREPRESENTATION THAT THE CONTRACT IS NOT A GOOD CONTRACT.    A CONTRACT WILL REMAIN VALID UNLESS AND UNTIL IT IS SED ASIDE BY YOU (the representee).

Once you have discovered the misrepresentation you can decide whether to continue with the contract or set the contract aside.   Lord Atkinson set the position out clearly:

“Where one party to a contract expresses by word or act in an unequivocal manner that by reason of fraud or essential error of a material kind inducing him to enter into the contract he has resolved to rescind it, and refuses to be bound by it, the expression of his election, if justified by the facts, terminates the contract, puts the parties in statu quo ante and restores things, as between them, to the position in which they stood before the contract was entered into”.

Having decided to progress with or terminate the contract you cannot change your mind, there are of course always exceptions to the general view but I am just going to deal with the general rule in this article.

If you have sustained financial losses such as loss of income, etc as a result of being induced to enter a contract through misrepresentation  you may be able to make a claim under both common and statutory law under section 2 (1) of the Misrepresentation Act which provides that where a person has entered a contract after a misrepresentation has been made to him by another part thereto and a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.  It should be noted that this sub-section assumes all non-fraudulent statements to be negligent and puts the burden on the maker of the statement to disprove negligence.

It is very important that  if you decide to bring proceedings for losses suffered by you in a claim for misrepresentation that you do the following:-

Prepare the claim form stating clearly that you are alleging not only misrepresentation but also fraud and negligence, this ensures that you cover all possible scenarios, especially if you are unsure whether the misrepresentation would be considered to be fraudulent or a negligent statement.    You must then set out clearly the following matters in your statement of claim where you wish to rely on them in support of your claim.

(1) any allegation of fraud;

(2) details of any misrepresentation;

(3) details of all breaches of trust; (negligent misrepresentation)

(4) notice or knowledge of a fact;

(5) any facts relating to mitigation of loss or damage;

(6) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing;

(7) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky attach or serve only the relevant parts of the contract or documents;

(8) Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken;

(9)Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done;

(10) In a claim issued in the High Court relating to a Consumer Credit Agreement, the particulars of claim must contain a statement that the action is not one to which section 141 of the Consumer Credit Act 1974 applies.

As stated this article is just an overview of this vast subject and is for information purposes only.

HOW TO DEAL WITH MORE THAN ONE DEFENDANT

I have have been assisting a client with a really complex property litigation matter where there are 18 defendants!!!!!!.  There has obviously been negligence on the part of two Solicitors and there has been a litany of mistakes leaving my client with defective title but how do you actually deal with a case where you have over 3,000 pages of evidence and 18 Defendants and how do you submit a Statement of Claim which sets out  allegations against 18 Defendants in a clear and cogent manner.

Upon instructing me my client forwarded over 400 pages of documentation with information which had to assimilated prior to my beginning to draft the statement of claim for her, 30 pages later, I have set out the Statement of Claim as follows-

1.     Details of who each and every Defendant is and their relationship to each other
2.     A full summary of the history of the case.
3.     A paragraph/paragraphs  for each Defendant particularising the case against them.

When dealing with as complex a matter as this you need to be very careful to clearly state your allegation against each Defendant individually.

This matter is further complicated because the client may need to bring a personal injury claim against one of the Defendants who attacked her.

I am not looking forward to sorting out Lists of Documents and the Statements

Has your fixed term contract come to an end.  Is you termination fair?

 

If you are an employee who has worked for a year or more  or two years or more if your employment began on or after 6 April 2012 in a fixed term contract, you will have gained the right to bring a complaint of unfair dismissal to an employment tribunal, if you can prove that your dismissal was unfair

Your dismissal on the expiry of your fixed-term contract will be fair provided that your fixed term was set up for a genuine purpose and that you knew what that reason was and the underlying purpose of the contract ceased when your fixed term contract came to an end.

 

If you feel that your dismissal does not fit into the requirements stated above you may be  entitled to bring a claim for unfair dismissal.

 

The above is for information purposes only

HAVE YOU HAD A BREAKDOWN DUE TO STRESS CAUSED BY BULLYING AT WORK.

You may be interested to know that Lady Justice Hale in the case of Hatton v Sutherland laid down 16 propositions  support by her Co-Judges that would need for the most part to be met to be successful in a claim for stress against an employer and I thought you might be interested them, because the moral of the story is if you don't tell your boss that you are feeling stressed and why (if it is work related) it is unlikely that you will be able to bring a successful claim for stress.

Here are the 16 propositions

1. There are no special mechanisms applying to claims for psychiatric (or physical illness) or injury arising from the stress of doing the work the employee is required to do.

2. The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable?  This has two components:

(a)      an injury to health (as distinct from occupational stress) which:

(b)      is attributable to stress at work (as distinct from other factors).

3.  Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee.  Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large.  An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

4.  The test is the same whatever the employment:   there are no occupations which should be regarded as intrinsically dangerous to mental health.

5.  Factors likely to be relevant in answering the threshold question include:

(a)  the nature and extent of the work done by the employee.  Is the workload much more than is normal for the particular job?  Is the work particularly intellectually or emotionally demanding for this employee?  Are the demands being made on this employee reasonable when compared with the demands made of others in the same or comparable jobs?  What are the signs that others doing this job are suffering harmful levels of stress?  Is there an abnormal level of sickness or absenteeism in the same job or the same department?

(b)  signs from the employee of impending harm to health. Has he a particular problem or vulnerability?  Has he already suffered from illness attributable to stress at work?   Have there recently been frequent or prolonged absences which are uncharacteristic of him?  Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

6.  The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary.  He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisors.

7.  To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

8.  The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the  magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.

9.  The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable;  these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

10. An employer can only reasonably be expected to take steps which are likely to do some good, the court is likely to need expert evidence on this.

11. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.

12. If the only reasonable and effective step would have been to dismiss automatically  the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.

13. In all cases, therefore, it is necessary to identify the steps which the employer both could and should  have taken before finding him in breach of his duty of care.

14. The claimant must show that the breach of duty has caused or materially contributed to the harm suffered.   It is not enough to show the occupational stress has caused the harm.

15. Where the harm suffered has more than one cause the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible.  It is for the defendant to raise the question of apportionment.

16. The assessment of damage will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event.

REASONS AN EMPLOYMENT CLAIM FORM MAY BE REJECTED BY A TRIBUNAL AND POSSIBLE REMEDY.

Under the  The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the following rules apply (these have been simplied slightly)

A Claim for will be rejected if you do not include  minimum information and the tribunal will reject a claim if

(a)it is not made on a prescribed form; or

(b)it does not contain all of the following information—

(i)each claimant’s name;

(ii)each claimant’s address;

(iii)each respondent’s name;

(iv)each respondent’s address.

(2) The form willl be returned to the claimant with a notice of rejection explaining why it has been rejected. The notice shall contain information about how to apply for a reconsideration of the rejection.

The tribunal will reject a claim form if you forget the tribunal fee or your remission application

 (1) The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.

(2) Where a claim is accompanied by a Tribunal fee but the amount paid is lower than the amount payable for the presentation of that claim, the Tribunal shall send the claimant a notice specifying a date for payment of the additional amount due and the claim, or part of it in respect of which the relevant Tribunal fee has not been paid, shall be rejected by the Tribunal if the amount due is not paid by the date specified.

(3) If a remission application is refused in part or in full, the Tribunal shall send the claimant a notice specifying a date for payment of the Tribunal fee and the claim shall be rejected by the Tribunal if the Tribunal fee is not paid by the date specified.

(4) If a claim, or part of it, is rejected, the form shall be returned to the claimant with a notice of rejection explaining why it has been rejected.

Your Claim for may be rejected if there a  substantive defects in this case :- 

12.—(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be—

(a)one which the Tribunal has no jurisdiction to consider; or

(b)in a form which cannot sensibly be responded to or is otherwise an abuse of the process.

(2) The claim, or part of it, may be  rejected by the Judge if if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraphs (a) or (b) of paragraph (1).

(3) If the claim is rejected, the form will be returned to the claimant together with a notice of rejection giving the Judge’s reasons for rejecting the claim, or part of it. The notice shall contain information about how to apply for a reconsideration of the rejection.

Reconsideration of rejection

13.—(1) A claimant whose claim has been rejected (in whole or in part) under rule 10 or 12 may apply for a reconsideration on the basis that either—

(a)the decision to reject was wrong; or

(b)the notified defect can be rectified.

(2) The application shall be in writing and presented to the Tribunal within 14 days of the date that the notice of rejection was sent. It shall explain why the decision is said to have been wrong or rectify the defect and if the claimant wishes to request a hearing this shall be requested in the application.

(3) If the claimant does not request a hearing, or an Employment Judge decides, on considering the application, that the claim shall be accepted in full, the Judge shall determine the application without a hearing. Otherwise the application shall be considered at a hearing attended only by the claimant.

(4) If the Judge decides that the original rejection was correct but that the defect has been rectified, the claim shall be treated as presented on the date that the defect was rectified. 

NEW PROCEDURES FOR BRINGING EMPLOYMENT TRIBUNAL PROCEEDINGS

Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Rule 8-(1) sets out the rules for starting a claim as follows:

Presenting the claim

8.—(1) A claim shall be started by presenting a completed claim form (using a prescribed form) in accordance with any practice direction made under regulation 11 which supplements this rule.

(2) A claim may be presented in England and Wales if—

(a)the respondent, or one of the respondents, resides or carries on business in England and Wales;

(b)one or more of the acts or omissions complained of took place in England and Wales;

(c)the claim relates to a contract under which the work is or has been performed partly in England and Wales; or

(d)the Tribunal has jurisdiction to determine the claim by virtue of a connection with Great Britain and the connection in question is at least partly a connection with England and Wales.

(3) A claim may be presented in Scotland if—

(a)the respondent, or one of the respondents, resides or carries on business in Scotland;

(b)one or more of the acts or omissions complained of took place in Scotland;

(c)the claim relates to a contract under which the work is or has been performed partly in Scotland; or

(d)the Tribunal has jurisdiction to determine the claim by virtue of a connection with Great Britain and the connection in question is at least partly a connection with Scotland.

Multiple claimants

9.  Two or more claimants may make their claims on the same claim form if their claims are based on the same set of facts. Where two or more claimants wrongly include claims on the same claim form, this shall be treated as an irregularity falling under rule 6