English Legal Cases Made Easy Episode 8 - A Heller-va Responsibility - when one should keep shtum!

So, you are getting a little worried about whether your client is going to be able to pay for all the advertising they are placing with you and they have asked you to do some more. Here's a good idea, why don't you ask your bank to get in touch with their bank to see if they are good for the money? This is exactly what an advertising agency called Hedley Byrne did in the late '50's. Thinking they were safe when their client's bankers responded with "yeah, no worries" (or words to that effect), they did the work. I expect you can guess what happened next. Yes, the clients were not good for it. In fact, they were at that time and known to all parties, the subsidiary of a company that was already in liquidation. Nevertheless, the bankers (Heller & Partners) believed that "the company would not undertake any commitments they are unable to fulfil" (Case citation: Hedley Byrne v Heller [1964] AC 465)

Sadly, it all ended in tears because that is exactly what Easipower did and left Hedley Byrne seriously out of pocket. The problem Hedley Byrne had was that they couldn't sue Easipower because they had gone bust but they had no relationship with Heller & Partners - there was no contract between them. Sometimes, though, you just have to give it a go which they did and they very nearly won as well. The case went right up to the House of Lords and it was decided that although there was no contractual relationship between them, Heller did owe Hedley Byrne a duty of care. The Lords said that if someone possesses a special skill and they apply that skill in the assistance of another person who relies on it, then a duty of care arises. They said that the bank (Heller) had made a negligent misrepresentation and the only thing that saved them having to fork out, was that they had marked their letter "Without Responsibility". The Lords decided that this was enough to let them off the hook.

The lesson here is that if you are in a position of special responsibility and you are asked for information about someone or something that could be relied upon, be very, very careful how you respond as you could be the one who ends up in court. Have a nice day!

Tina Morgan   www.john-kennedy.co.uk

Legal-easy

English Legal Cases Made Easy Episode 5 - Oh What a Nuisance!

You know the old saying - you can't choose your family and you can't choose your neighbours - well, some of us think we are dead unlucky with our neighbours. They can be such a pain - parking their caravan on the front drive, having parties, playing the trumpet, having bonfires in the garden, you know the sort of thing. Well, the next time a little bit of smoke is floating across the garden fence or you have just heard the 150th attempt at a major C scale, spare a thought for poor old John Rylands who had been happily mining his land for coal. Like a mole he had dug some nice tunnels and was content in their construction, when, dash-it-all, the Fletchers next door built a reservoir to run their mill. Needless to say, as plastic pond-liners hadn't been invented back in 1868, the water seeped into the ground and flooded Rylands' lovingly-excavated tunnels and mine-shafts. Well, they'd put up with the trumpet-tootling and the bonfires but this was the straw that broke the camel's back.

Off they went to court but sadly, the first court said that having water on your land is not the sort of thing that you can complain about your neighbours for - even if it is a reservoir. Rylands took issue with the "nuisance" perpetrated by Fletcher but the court held that there had been no negligence by Fletcher, so tough! Rylands was clearly not the sort of person to give in; he appealed and the case finally got to the highest court in the land - the House of Lords.

So, perseverance won the day in the end and it was another great moment in the annals of English legal cases that prove a point. The point it proved is that if you take something on to your land which is likely to do mischief if it escapes and it does so, then you will be liable for the damage. Here are a few words from the Lord Chancellor for your enjoyment:

"The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property." (Lord Cairns) (Rylands v Fletcher [1868] UKHL 1)

The question was not whether Fletcher had acted with due care and caution, it was whether his actions had caused the damage. This is the doctrine of strict liability.

So next time you take rampaging cattle into your garden or produce stenches from your industrial processes or even, perish the thought, have a seriously leaky loo, be prepared to have your poor "damnified" next-door neighbour take you to court for being a right rotten nuisance.

Tina Morgan   www.john-kennedy.co.uk

Legal-easy

English Legal Cases Made Easy Episode 1 - A Snail's Tail - In which a nice day out turns into a gruesome banquet of decomposing gastropods

Once upon a time and a very long time ago, a woman went for a nice day out. Feeling a little thirsty, she and her companion stopped for some refreshments. Mrs Donoghue (for that was her name) asked her friend to order an iced drink and it duly arrived in an opaque bottle. The waiter poured some of the ginger beer into a tumbler containing ice-cream and Mrs Donoghue proceeded to drink it. Her friend then poured the rest of the ginger beer into the tumbler and as she did so, a decomposing snail popped out. How pleasant!

Poor Mrs Donoghue then suffered gastroenteritis and nervous shock (ladies in the '20's were not quite as robust as they are now) and, quite rightly, wanted some compensation which, eventually, she got. What was the problem, you might ask yourself looking back from the 21st Century? If somebody injures you then you are entitled to compensation. Well, at that time, the problem was that firstly Mrs Donoghue had not actually purchased the ginger beer - her friend had bought it for her and her friend had not been injured, so there was no contractual relationship between Mrs D and the café owner. There was also no possibility of suing the manufacturer of the drink as ginger beer is not inherently a dangerous product (although it can be a little fiery!) and there was no fraud as it was what it was supposed to be.

Nevertheless, Mrs Donoghue found a gallant solicitor who already had experience of trying to sue the makers of ginger beer over a case of a decomposing mouse in his drink but had failed. Clearly adventurous to the core, the solicitor gave Mrs Donoghue all he had in terms of legal bulldogism! The case ended up in the highest court in the UK, the House of Lords, in an effort to establish Mrs Donoghue's right to pursue the manufacturer of the gastropodous beverage and it was there that the law was changed and the "duty of care" was established. That is, that we all have a duty not to injure anyone who could reasonably be expected to be injured by our actions. Quite often it is referred to as either the "Atkin" principle (after the judge who said it) or the "neighbour" principle. For your entertainment, I have set it out below:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." (Lord Atkin) Donoghue (or M'Alister) v Stevenson ([1932] AC 562 1932 SC(HL) 31 [1932] All ER Rep 1)

Ultimately, Mrs Donoghue got her compensation. She had originally asked for £500 but settled, out of court, with the executors of Mr Stevenson's estate (he had died in the meantime - one hopes not from drinking his own pop!) for £200.

Tina Morgan  www.john-kennedy.co.uk

Legal-Easy