Sailing in the Canaries: A Clarification Of Personal Injury Law

The law regularly needs updating, so that legal tests and principles reflect modern issues and society. Indeed, sometimes the law needs a clarification concerning a grey area of uncertainty.

One such case that both updated and clarified the law (relating to personal injury and employment) was before the High Court this May- Vaughan v MoD [2015] EWHC 1404 (QB). The case was brought by Spencer Vaughan, 27, of the Royal Marines, against the Ministry of Defence (MoD).

2010 had seen Marine Vaughan taking part in a sailing expedition with fellow Marines. The sailing was organised and arranged by the Royal Navy & Royal Marines, and was considered an adventurous training expedition for the benefit of the personal development and training of the Marines –as well as being good fun, and an experience for all on board.

The voyage was around the Canary Islands. On the last day of the voyage, a lack of win caused the very experienced skipper to delay the sailing of the vessel from Puerto Mogan marina in Gran Canaria. The skipper expected the wind to pick up later that day – and told the Marines under sail training that they had free time until later that afternoon. The Marines promptly went ashore, and took advantage of that unexpected free time by visiting the beach at Puerto Mogan. Whilst at the beach, waist deep in water, Mne Vaughan attempted a “Baywatch style” dive. In doing so, he unfortunately struck his head against a submerged sandbank, and sustained “a fracture of his cervical spine.”

Following the accident, Mne Vaughan started personal injury legal proceedings against the Royal Marines- with the case appearing before the High Court in May of this year. The basis of his claim was that he had been injured as a result of a breach of the duty of care that the MoD owed him. He argued that he was on a “training exercise” at the time of the accident (the sailing expedition), and was therefore covered by the liabilities existing between employers and employees at the time. Therefore, the MoD owed him the same duty of care at the time of his accident as any civilian employer would for a workplace accident.

The MoD argued against this. According to the MoD, at the time of the accident, the Marines were not “on duty” at the time, or working for the Marines at time. Although they were on a training exercise, they had been told that they were on their own time prior to leaving for the beach; as such, they were not under the responsibility of the MoD. Further, although the skipper (Corporal Sanders) had, by law, a duty and responsibility for his crew and the Marines under his command in the vessel, he was not present on the beach at time of the accident. Further, in such a situation, if Cpl Sanders had been present, his permission would not have been asked for such activities as diving into the sea.

It was up to Mr Justice William Davis in the High Court to determine whether the employee/employer relationship and liabilities was present at the time of the accident. In his verdict, he started by summarising the key matters of law. Amidst other such points, to Judge Davis, the overall legal point under debate was, at the time of the accident, did the Royal Marines owe Mne Vaughan a duty of care at the time of the accident?

Quoting from his speech,

“The duty [of care] cannot be greater than the duty that would be owed by an employer i.e. the duty covers the performance of the “work” done by Marine Vaughan and anything reasonably incidental to that “work”. If his activity was outside the course of his “employment” the Defendant owed no duty qua employer.” (p.13)

From p.14, it is evident that the Marines themselves all considered themselves to be “working” for the MoD throughout the voyage;

“Marine Vaughan said that he considered himself to be on duty for the whole time that he was deployed on the training exercise i.e. from the moment he left to travel to the Canaries until the point of his return. He took that view because he had been ordered to go on the training exercise. Marine Barnett was of the same view for what amounted to the same reason. His rationale was that, because Corporal Sanders could have exercised control over him on the morning of the 23rd January had he wanted to, he was on duty. Marine Keenan also said that he was on duty for the whole of the period of the training exercise. He commented that a Royal Marine represents the service at all times whether in or out of uniform. Corporal Quirk was of the view that the issue was a grey area. He said that, had he gone to the beach and told the Marines to go back to the boat, they would have had to do so. To that extent they were on duty. Equally, the Marines at the relevant time were free to do whatever they wanted.”

This would (probably) include matters such as the trip to the beach. However, the same paragraph also illustrates the grey area present. According to MoD publications referred to by the Judge, even the MoD recognises that even when participating in adventurous training and other supporting military activities (and definition “on duty”) there are times where the participant can be said to be “off duty”.

The skipper clearly had stated that the Marines had free time that morning, there being no work to do on the boat- and had given them no further instructions or orders. Indeed, he was unsure as to where they had gone, demonstrating that at that moment he was no longer in charge of them –despite absolutely having responsibility for them. As such, Judge Davis at p.16 is drawn to the conclusion that the Marines were of duty whilst on the beach. It is as if the Judge is somewhat reluctant to make that admission, but is forced to by the logic of his line of reasoning and legal argument.

Throughout, Judge Davis returns to the point that the Marines in question had considered themselves on duty throughout. At p.17, this is called into question:

“The proposition that the Defendant should have treated the Marines as being on duty because the Marines thought they were on duty is not sustainable; not least because the Defendant – whether via Corporal Sanders or otherwise – had no reason for believing that this was what the Marines thought.”

Although the verdict is fairly obvious at this point, Judge Davis still has further issues to clarify; the conclusion in relation to “on duty” does not determine the issue of whether Marine Vaughan was acting in the course of his “employment” (p.18). Even though on adventurous training, and indirectly working towards their mental and physical fitness – of great importance to the Marines – once again, it cannot be said that the Marines were on duty

Judge Davis throughout gently (and it seems with reluctance) proves the point that, although there was responsibility and a degree of liability throughout, the Marines at the time of the accident cannot be said to have been under the command and control of the MoD at the time of the accident. As such, there was no employer/employee liability- and therefore no breach, causation or any of the usual elements of tort. At p.38, Judge Davis dismisses the appeal.

Although clearly at work, and indirectly working for their employer, the Marines were not considered to be under employer/employee liability at the time of the accident on Puerto Mogan beach. Not just in the military, but in many situations in civilian employment there is often that “grey area” which can surround some accidents at work, or personal injuries, and whether the individuals or managers concerned were “on duty” or “off duty.” Sometimes, despite being on duty, or at work, the exact nature of the situation or environment might similarly call into question whether the employer owed the injured employee a similar duty of care at the time of the accident. Despite having responsibility towards employees at all times – sometimes, that responsibility does not translate in to liability.

That grey are of personal injury law still persists. Vaughan v MoD goes some way into clarifying that very matter. As such, it is a welcome addition to the canon of case law surrounding personal injury and work injury claims. Vaughan v Mod is also useful for personal injury law as it similarly helps to clarify the distinctions between “on duty” and “off duty”.

One phrase that Judge Davis uses or paraphrase several times in his concise verdict is the concept that, for there to be a liability, the Marines (or employees) must have been performing duties “reasonably incidental to their work.” As a benchmark or test, it is s useful phrase. Despite itself being flexible and open to interpretation, “reasonably incidental to their work” does provide some clarity.

It is only too easy to be injured at work, despite all the best precautions, and the liability of employers regarding health and safety at work. Given the flexibility of the modern working environment and workplace, it is also only too easy to receive an injury in a situation where it is uncertain whether an employer still retains that liability along with their responsibility. Vaughan v MoD goes some way into defining where that liability starts and ends.

Major London Firms Move Towards Flexible Working

Linklaters, a Magic Circle legal firm, has become the latest major City practice to move towards a flexible working model. With staff at legal firms around the country praising the benefits of flexible working arrangements and increasing concerns over the work/life balance available to legal professionals, more and more firms are now looking into ways of offering flexibility to their staff.

In the past, the legal industry has been criticised as a slow-adopter of flexible working principles. However, the sector now seems to be beginning to catch up as a number of prominent firms have announced flexible working schemes of late.

Herbert Smith Freehills, a major international legal firm, also recently announced a flexible working initiative. The firm’s UK staff will now benefit from more choice when it comes to time and location for carrying out their work.

A Linklaters spokesperson stressed the firm’s commitment to providing flexibility to its employees so far as client and colleague needs allow. However, it was also emphasised that the firm does not believe a “one-size fits all” policy to be truly workable. The spokesperson said: “The only thing a policy can do is draw a line that makes it clear that because people have a variety of needs, the ethos around flexibility is one that the business supports.”

At present, roughly 7% of the firms staff are working on a flexible basis. The flexible working arrangements that these employees have access to are formally built into their employment contracts with the firm. Linklaters piloted a flexible working scheme in London, aiming to break down people’s preconceptions around the idea of flexibility in working arrangements. This pilot scheme offered employees to work from home for one day every week if they chose to do so.

“Some did [choose to work from home], some didn’t,” the firm said, “but the option was open to all, talked about and championed. Since this pilot we have had other groups adopt this approach,’ the firm said. We don’t look at progress in this area through the number of formal employee flexible arrangements that we put in place.”

When Herbert Smith Freehills surveyed staff about its experiments in flexible working, it found that three quarters believed that this kind of approach could boost overall productivity. Almost 90% of surveyed staff also said that the option of working from home was either somewhat important or very important.

The concept of flexible working has strong bearings one one of the big topics for the legal industry at present. A number of recent surveys and studies have looked at the challenges involved in a legal career, and identifies difficulty in achieving an effective work/life balance as a key problem. Flexible working could significantly improve things in this area, and help staff better balance their private and personal lives in some significant ways.

Online Sentencing System Proposed

Sir Brian Leveson, head of the Queen’s Bench Division, has proposed an online system of sentencing for minor offenders. The suggestion was made as part of the most recent round of proposals delivered in an effort to find ways to speed up the criminal justice system through the use of information technology.

Back in January, Leveson proposed that physical court proceedings could be replaced by an online hearing process for many low-level offenders. Addressing the Modernising Justice Through Technology conference, he seemed to take the idea of reducing the burden that more minor cases place upon the system even further.

Speaking just a day after his previous proposals for boosting the efficiency of the UK’s criminal courts received the backing of the Lord Chancellor, Leveson suggested that sentences could be handed out to those who had committed only low-level offences automatically. Fines could then be paid online with a debit or credit card, he proposed. This would be used in relatively straightforward cases where defendants have entered guilty pleas, so that establishing guilt would not be an issue.

“It should be possible,” Leveson suggested, “to use recognised sentencing guidelines to identify a prospective sentence which the person who has just pleaded guilty can accept if he or she chooses to do so.” Then, they would simply enter their payment details in order to pay the fine and the process would be concluded in a single, virtual session. This would bring the process of handling guilty pleas for minor offences somewhat in line with the process for traffic offences. Indeed, Leveson compared the process to road fund licenses and parking fines.

Defendants would also enter their income and outgoings to ensure that the fine would be appropriate. This information would, of course, be checked for accuracy.

In his speech, Leveson suggested that this would allow, “the right to a hearing being reserved for those who ask for it, perhaps because they have particular mitigation.” The rest would be able to accept the suggested penalty and bypass the need for a hearing, thereby reducing the workload of the courts.

“A very large bulk of standard, low-level work which is presently very expensive to process may be resolved without a formal court appearance or hearing,” Leveson said in summing up.

However, Leveson also warned that there were “elephant traps” to be aware of in adopting such a system. In particular, he pointed to a past history of failures in IT projects and also said that “some of [his] colleagues” may be reluctant to move away from paper files.

First Libor Manipulation Criminal Trial Begins

The first criminal trial relating to manipulation of Libor – an important interest rate – has begun. Tom Hayes (pictured), a former London trader with Citigroup and UBS, is facing trial in London for alleged manipulation of Libor rates.

“Libor” stands for “London Interbank Offered Rate.” This is an interest rate used by banks not just in the UK but across the globe in order to price their financial products appropriately. Libor plays a key role in setting prices of many financial products, including some with multi-billion pound values.

Hayes is accused of trying to rig Libor rates for personal gain in what a “thoroughly dishonest and manipulative manner.” He is facing eight criminal charges, each for conspiracy to defraud, taking place at various dates between 2006 and 2010. It is claimed that he lied about the rates at which the banks he worked for were borrowing money. The incorrect data he provided went into the calculation used to set the Libor rate and affected the results. Having provided the faulty data, he was able to predict the effect it would have and take steps in order to profit. In the wake of the news that Hayes and others in the banking industry have been acting in such a way, the method through which Libor is calculated has been revised in order to eliminate this avenue of interference.

His motive for committing these offences, according to Mukul Chawla QC who is acting for the prosecution, was simply greed. In making this accusation, the prosecution is using the defendant’s own words. At Southwark Crown Court where Hayes is being tried, jurors have heard that the defendant himself said to investigators: “The point is, you are greedy, you want every little bit of money you can possibly get.”

“That’s how you are judged,” Hayes concluded, “that’s your performance metric.”

The prosecution acknowledged that a number of people besides the defendant in the current trial were involved in the alleged offences. However, Mr Chawla contends that Mr Hayes acted as “the ringmaster at the very centre, telling others around him what to do and in a number of cases rewarding them for their dishonest assistance.”

Overall, the prosecution accused Hayes of obtaining “the help of a large number of people across a large number of different financial organisations” in order to dishonestly and criminally manipulate Libor activity. At times he approached other parties directly, and at others he approached them through middlemen. With their help, the prosecution claims, “he tried to rig, and in many cases succeeded in rigging, the rates at other banks.”

The trial is expected to last for 10-12 weeks.

First Solicitor Qualifies Through Equivalent Means

Robert Houchill has now become the first person to qualify as a solicitor through “equivalent means,” an alternative to the training period traditionally required before qualifying. Houchill, a senior paralegal, qualified after providing evidence to the Solicitors Regulation Authority (SRA) to show that through his work he had reached the same standard as somebody undergoing the standard training period.

Houchill is employed by Bates Wells Braithwaite, in the London firm’s immigration department, and has been a paralegal for four and a half years. He has now  become the first person to become a qualified solicitor through the Training for Tomorrow programme, a scheme created by the SRA as a way to make the path to qualifying as a solicitor more flexible. The Training for Tomorrow programme formed part of a set of education and training reforms the SRA brought into force last year.

The introduction of “equivalent means” enables workplace experience within the legal sector to be recognised by the SRA. If the experience in question is held to be equivalent to that which would be required as part of a training contract or other recognised, formal training period, then this too can be recognised and qualification granted. Applicants do not have to have worked within the legal sector for any minimum period in order to apply for qualification through equivalent means. They must, however, provide evidence to show that they have achieved strict standards, equivalent to those expected of candidates qualifying through more traditional routes.

Houchill completed an LPC but did not go on to undergo a period of recognised training or to secure a training contract with a legal firm. However, after reviewing his case and the evidence provided, the SRA was satisfied that his years as a paralegal had brought him to the same standards and granted him the same skills as would be expected of a trainee.

According Houchill, that the distinction between the work carried out by solicitors and the jobs of paralegals was growing less stark, making his experience as a paralegal more valuable than it might once have been in preparing for practice as a solicitor.

“I am sympathetic to people who are anxious this is going to undermine the profession or reduce the quality of people being admitted,” said Houchill, who claimed that he would still have preferred to qualify through a traditional training contract.

“But the SRA has made it a demanding process,” he continued, “and you have to provide evidence you’ve done an awful lot to prepare. I’m not falling into the profession, I know it well.”


Legal Aid Judicial Review Dismissed by High Court

Much of the legal profession has been disappointed today as the latest challenge to legal aid reforms, calling for a judicial review, was thrown out by the High Court. The Law Society and a number of prominent practitioner groups for the legal industry now intend to mount an appeal against this decision.

Andrew Caplen, president of the Law Society, said that the High Court’s decision to throw out this challenge had left him “extremely disappointed.” Caplen went on to say that “large areas of the country could be left without legal representation” if the government’s legal aid reforms go ahead as planned. Regarding the intention of the Society and other organisations to seek an appeal, he said: “We will continue to campaign for an effective, publicly funded defence system to prevent the risk of a sharp increase in miscarriages of justice.”

Jonathan Black, president of the London Criminal Courts Solicitors’ Association (LCCSA), also expressed disappointment. He described the High Court’s ruling as a “terrible blow,” and expressed concerns about how he feels the decision “now offers the ideologically driven desire to cut publicly funded criminal legal aid a veneer of respectability.”

Bill Waddington, chair of the Criminal Law Solicitors’ Association (CLSA) also lent his voice to the legal industry’s chorus of disappointment. However, he said that the ruling was only a “temporary setback,” and said “we are not downhearted and by no means out.”

The Ministry of Justice, by contrast, welcomed the decision. A spokesperson for the Ministry said that there was little choice but to cut costs in every area, including legal aid, in light of the UK’s dire economic situation when the current government came to power. A “very generous” system would still be in force even after reforms, the MoJ insisted.

The challenges to the reforms were heard last month by Lord Justice Laws and Mr Justice Cranston. The challenges particularly focussed on the idea of two-tier contracts, as well as cuts to fees. Fees were cut last year by 8.75%, and are due to be cut by a further 8.75% this summer.

In the judgement issued today, Lord Justice Laws said that the plans were “proportionate,” and that he could conclude this “without hesitation.”

“It is accepted on all hands that consolidation in the legal aid market is needed, if legal aid is to be provided at reduced fee,” he said. “It may reasonably be concluded that this is a proper way to achieve it.”

Solicitors Criticise Diversity Survey Timing

Solicitors within the criminal law sector have poured criticism on the Legal Aid Agency‘s recent equality and diversity survey. The timing, they contend, was ill-judged and renders the results of the survey “pointless.”

All contracted providers of crime and civil law were emailed a request to take part in the diversity survey by the Legal Aid Agency. This took place while a three-day judicial review hearing was taking place in the Royal Courts of Justice, defending the decision of the Lord Chancellor to continue with the concept of two-tier dual contracts. This hearing is creating a great deal of uncertainty in the sector, and the result has the potential to have a significant impact on criminal law practice on multiple levels.

The timing of this survey, to coincide with the judicial review and the uncertainty around it, was “ridiculous” according to Criminal Law Solicitors’ Association chair Bill Waddington. He went on to describe the diversity survey as “a distraction technique and one we do not need right at the moment.”

“Could it not have been done three months ago, 12 months ago or in three months’ time?” Waddington asked. “Why now?”

London Criminal Courts Solicitors’ Association president Jonathan Black was similarly critical of the timing of the survey, and questioned why the Legal Aid Agency felt this was the correct time to conduct it. While he welcomed the principal behind the survey, he said that the timing detracted from its value considerably. “with so much uncertainty [at the moment],” Black said, “those records are going to be pointless.”

Criticism over the Legal Aid Agency’s timing was also voiced by the Law Society. The Society recognised the importance of monitoring diversity and equality in every business within the legal sector, but said that now, simply, “is not a good time to ask legal aid solicitors to complete surveys.”

“Many are working against a backdrop of uncertainty,” the Society continued in a statement, “working through complex tender documents while a judicial review decision on the process for criminal duty tenders is pending.” This means that the survey is not only inconvenient for professionals, but will gather results that have the potential to change very quickly.

The Legal Aid Agency defended its decision to court responses to the survey, but did not seem to address the issues and concerns surrounding the survey’s timing. The Agency described the diversity survey as a vital component of its efforts to ensure equal opportunities, and said that “we need a good response so that we have accurate information about our providers.”

Legal Industry Well-Represented in New Year’s Honours List

The legal profession features prominently in the New Year’s Honours List this year, with a number of prominent figures named. In particular, a number of city lawyers and legal professionals working for the civil service are set to receive honours.

One of the most notable legal industry figures to feature on the list is Fiona Woolf. City Solicitor and former Lord Mayor of London, Woolf is currently a consultant for CMS Cameron McKenna. She also recently stepped down from a post as the nominee chair overseeing historic child abuse inquiries. She is (somewhat controversially) being named a Dame Commander of the Order of the British Empire. The honour is being granted for her services to the legal profession as well as to the City of London and to Diversity.

Prestigious honours are also to be given to Harold Carter of Treasury Solicitors, the shared in-house legal organisation used by the government. Carter currently holds the post of deputy legal adviser in the service. For his work in government legal services, as well as for services to the local community in his hometown of Guildford, Surrey, Carter is being made a Companion of the Order of the Bath (KCB).

A KCB is also being granted to David Cook, another prominent figure in government legal services. Cook serves the Office of the Parliamentary Counsel in the role of second parliamentary counsel. His award is for his services to legislation preparation.

A number of legal figures are being made Officers of the Order of the British Empire (OBE). Among them is the Royal Mencap Society’s legal head, Lynda Rowbotham, who receives an OBE for her services to individuals with learning disabilities and to their families. The Treasury Solicitor’s Department’s Deputy Director, Robert Messenger, is also among the legal professionals awarded an OBE this year. Messenger receives the award for his work in the provision of government legal services.

The slightly more prestigious rank of Commander of the Order of the British Empire (CBE) is also being handed out to a number of legal professionals in this year’s list. For example, a CBE for services to children is being awarded to Uma Mehta, the London Borough of Islington’s chief community services lawyer. Leading cross-border and comparative financial law expert Philip Wood QC is another legal figure awarded the rank of CBE. Wood works for Allen & Overy, a magic circle firm, as special global counsel. He receives the award for his services to English law and financial law.

Lord Justice Jackson Criticises Failure to Grasp Skeleton Arguments

Lord Justice Jackson has criticised the legal industry for a continued failure to grasp the need for better skeleton arguments. He said that the need idea was “not rocket science” but that legal professionals were consistently failing to grasp its importance and implement improvements.

Through a Court of Appeal judgement, Jackson took the opportunity to “speak more bluntly” on the issue. In particular, he criticised the way some of the skeleton arguments seen in the upper levels of the court system displayed “poor quality and excessive length.”

The judgement in question related to a case where it was being decided whether a defendant should be committed for contempt of court. The appellant, according to Jackson, produced “35 pages of rambling prolixity.” This, he said, made it extremely difficult to distil the facts and important points from the argument.

Jackson went on to say that “A good skeleton argument (of which we receive many) is a real help to judges when they are pre-reading the (usually voluminous) bundles. A bad skeleton argument simply adds to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments.”

A good skeleton argument, he said, “just requires a few minutes’ clear thought and planning before you start.” Jackson noted that the court of appeal had sometimes deprived certain parties of the costs of skeleton argument preparation, but said that it was no longer sufficient to just issue minor rebukes for poor quality skeletons.

Jackson went on to provide some suggestions for the preparation of a good skeleton argument. He said that such an argument should be designed to provide judges with a “concise, user-friendly introduction” to the relevant issues, arguments and facts of the case. This should be done with cross-referencing to other relevant documents or authorities.

In terms of length, Jackson suggested that usually a skeleton prepared by an appellant should not exceed 25 pages, and usually it should be significantly shorter.

Jackson is not an entirely uncontroversial figure within the legal industry. He has issued many suggestions for reforms or improvements which have not always proved popular across the board. In particular, he carried out a review of civil litigation and this contained a number of controversial proposals as well as many well-received ones. These were later implemented somewhat selectively by the government, particularly those relating to the even more controversial legal aid reforms.

Senior Judge Calls for Family Court Reforms

Family Division president and High Court judge Sir James Munby (right) has called for “radical” reforms of the family court system. This call forms part of the ongoing and high-profile discussion surrounding the impact of legal aid cuts on the family court, with Munby suggesting that overhauling the system would help to somewhat mitigate the negative impact of these cuts.

The cuts to legal aid, removing it from the larger part of family court cases, have resulted in a huge increase in the number of people appearing without any legal representation. Munby suggested that parties appearing without representation is now the “reality” of the family courts, and that the system must be adjusted in order to reflect this.

Speaking to the Legal Wales Conference last week in Bangor, Munby also suggested that a radical overhaul of the divorce process could be needed. Not for the first time, Munby suggested the introduction of a no-fault divorce system – something which does not truly exist in the British system but is seen in some other jurisdictions around the world. In fact, Munby suggested that the concept of fault could be removed from the divorce process entirely, leaving irretrievable breakdown as the sole basis for divorce.

Munby also suggested that the process of obtaining a divorce and the matter of seeking financial relief afterwards could be separated into two separate processes. On this subject, he asked “May the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?”

Summarising the reasoning behind these suggestions, aside from reflecting the difficulties the current process creates for those who cannot afford legal representation, he said that the family justice system should aim to “simplify and streamline” processes. This would make them more pleasant for those involved, more accessible to litigants in person, and cheaper on the whole.

Furthermore, Munby criticised the “injustice” that currently exists in the fact that family courts do not afford the same rights and treatment to cohabiting couples as they do to married couples. When it comes to redistribution of assets, he claimed, the two types of couple should be treated more equally than they currently are.

Summarising his call for an overhaul, Munby said “Reform is desperately needed – has been desperately needed for at least 40 years… Thus far governments have failed to act. Reform is inevitable. It is inconceivable that society will not right this injustice in due course.”