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British Skier
There has been a mixed reaction to a High Court ruling that a French ski instructor is liable to pay more than £1m in damages to a British client, paralysed after crashing into a tree in the Alps. Graham Anderson was on his third family holiday with tour operator Snowbizz in the resort of Puy St Vincent when the accident happened. Delivering judgement in Anderson v M and J Lyotier and Portejoie (awaiting publication), Mr. Justice Foskett said there was no suggestion that the Snowbizz partnership was at fault. He said the issue was whether Jerome Portejoie, the instructor, should have permitted or encouraged Anderson to ski in the off piste area where the accident happened. “The potential for serious injury is clear,” the judge said. “The potential for serious injury when impacting with a tree is obvious. Clearly if the impact is with a young and flexible sapling, a serious injury would not normally be foreseeable. But any tree of stature or substance must present a risk.” Mr Justice Foskett said it would be wrong to hold that a skier “abdicates all responsibility” for deciding whether or not to do something suggested by the instructor. He said adult skiers must say something to avoid the suggestion they are not taking sufficient care of their own safety, before ruling that Portejoie was two-thirds responsible for the accident, the claimant one-third responsible. In his concluding remarks, he said “Everyone recognises that skiing is an inherently risky pastime and accidents causing injuries, sometimes very serious, will occur, more often then not without negligence being established on the part of anyone involved.”
Accidents
The Association of Personal Injury Lawyers (APIL) have advised that lax regulation and systemic conflicts of interest have deprived motor accident victims of legal advice and encouraged them to accept reduced compensation from insurers. APIL’s chief executive Denise Kitchener described as ‘institutionalised’ the practice of third-party capture, where the insurer of the ‘guilty’ party directly approaches the other. ‘Victims’ can often be persuaded to settle without consulting a solicitor, and accept many thousands of pounds less compensation than their entitlement.’ APIL submitted evidence of third-party capture to the Financial Services Authority [FSA] in November 2007. However, nine months later the authority said it was still considering what to do. ‘The FSA must stop dragging its heels and take firm control of the insurance industry, with its web of interdependency between a handful of major financial institutions.’ Kitchener said ‘Transparent, rigorous regulation is urgently needed.’ The FSA said it does not audit the relationship between insurers and lawyers. However, ‘we are taking the concerns expressed by APIL seriously’, a spokesman said.
Mortgage Repossession
Solicitors have warned that the new mortgage repossession pre-action protocal, which came into force last month, lacks bite. The protocol, which attempts to encourage agreement between lenders and people at risk of repossession without the need for litigation, was hailed by the Ministry of Justice as a significant step in helping vulnerable familes. However, solicitors have warned that the protocol could do little to halt the rising tide of repossessions. Paul Marsh, President of the Law Society, said the pre-action protocol was “just a gesture”. He went on: “While the idea to resolve arrears disputes at an early stage is welcome, there are no sanctions for lenders who fail to follow the protocol and there is no requirement for lenders to explain why they have rejected a borrower’s offer of payment. It lacks any bite.” Paul Marsh said the protocol failed to close a loophole available to lenders intending to enforce their security on a residential property without obtaining a court order. He said that in some cases lenders appointed a receiver to sell the property, causing the borrower who was originally occupying it to become a tresspasser. Mr. Justice Briggs ruled in October in Horsham Properties v Clark and Beech (2008) EWHC 2327 (Ch) that this did not breach the borrower’s rights under the ECHR. “As the number of mortgage possessions proceedings rise, there is more temptation for lenders to take this quicker route, particularly on buy-to-let mortgages”, said Paul Marsh. “The government should introduce legislation to tackle this problem before it becomes more common because the courts have ruled they are powerless to stop it.” Paul Marsh said the “slight advantage” that RBS customers would have with the six mouth pause before repossession proceedings is that they would have more time to consult solicitors. He questioned the impact of the three month breathing space agreed by the other lenders after talks with Chancellor Alistair Darling. Robert Latham, housing specialist at Doughty Street Chambers, agreed that the pre-action protocol was likely to have limited impact. “Homeowners have inadequate protection under our domestic law,” he said. “The protocol simply indicates what best practise should be and will only work if lenders show some element of social responsibility.” Derek McConnell, solicitor at South West Law in Bristol, said the pre-action protocol was useful in attempting to improve lines of communication between borrowers and lenders. “It flags up the issues the parties should discuss, such as whether a customer should transfer to an interest only mortgage. However, if the lender refuses to consider the options, the protocol has no teeth.” McConnell called for a fundamental review of the laws relating to residential mortgage occupiers. “Courts need powers to prevent borrowers being unnecessarily evicted, for example where courts are satisfied that switching to an interest only mortgage would not cause financial detriment. “Otherwise, if the recession really kicks in, we will see a return to the rate of evictions seen in the early 1990s and possibly more. “Mortgage lending has become a more complicated process and the courts should be given the power to deal with it.” However, John Gallagher, principal solicitor at Shelter, said that District Judges could use a failure by lenders to follow the protocol to adjourn repossession actions. “It may seem very weak, but in the hands of some District Judges it could be made to work, “ he said. Gallagher added that the Civil Justice Council was drawing up a questionnaire for lenders to show they had complied with the protocol, which could be introduced as soon as January.
VAT - Change in the standard rate
In his Pre-Budget Report on 24 November 2008 the Chancellor announced that the standard rate of VAT will be reduced to 15% on 1 December 2008.