Interesting to read but lets face it, nothing that surprising !, the Judge interpreted the law correctly IMO, and commented that it may be possible for the store/RLP to recoup loses but not in the present guise and Im not sure that following the parking charge example would be any more succesfull, surely this would need big signs at shop doorways telling shoppers they are entering a contract as soon as they enter a shop, this would scare me off !

 

I'm really surpsried that QC Mawrey opinions on this overlooked some very obvious basic facts.

 

Andy

I would be grateful if you could direct me to Mr Mawrey's opinion on this?

I think that Andy means that in overlooking it, Mawrey didn't include it in his opinion.

You are quite right in what you say. It is, indeed, very rare for a judge to award punitive damages. The only case I know of where a District Judge awarded punitive damages against a defendant was in a personal injury case where the defendant, a manufacturer and their insurers, were repeatedly seeking adjournment of the assessment of damages hearing, without good reason and attempted to mislead the judge, who visited the factory to inspect the machinery that caused the claimant's injuries. The DJ, in addition to awarding substantial damages plus costs against the manufacturer and their insurers, inflicted punitive damages in respect of their abuse of the legal process and attempts to mislead him and the court.

Minor gripe: wrong phrase. Exemplary damages are what you ask for. The test is common law, two limbs (depending on whether the Defendant is a servant of the government or calculates that it will profit from its action), found in Rookes v Barnard. Your pleadings should be aligned very precisely with the words of the judgment. Unwise to bother except in circumstances I won't go into (dont want to be accused of encouraging it), otherwise you might just annoy everyone and thus weaken your main case.

But who needs exemplary damages when you can get 100% costs awards, even in a civil recovery small claim? Civil recovery? Love it almost as much as costs recovery.

I think that Andy means that in overlooking it, Mawrey didn't include it in his opinion.

Sorry, I'll rephrase. Is it a new opinion or his old ones of a year or two ago? Can you give me a link?

As far as I am aware it's the original opinion. It's on RLP's website.

Nice to see you here, by the way.

Minor gripe: wrong phrase. Exemplary damages are what you ask for. The test is common law, two limbs (depending on whether the Defendant is a servant of the government or calculates that it will profit from its action), found in Rookes v Barnard. Your pleadings should be aligned very precisely with the words of the judgment. Unwise to bother except in circumstances I won't go into (dont want to be accused of encouraging it), otherwise you might just annoy everyone and thus weaken your main case.

 

But who needs exemplary damages when you can get 100% costs awards, even in a civil recovery small claim? Civil recovery? Love it almost as much as costs recovery.

The case highlighted in my post refers to a case where the defendant abused the legal process and attempted to mislead the judge and court. The DJ involved hit the defendant with the punitive damages award for doing this and the punitive damages went into central funds. The claimant received substantial damages for personal injury and full costs against the employer and their insurers.

CitizenB, yes it did get a couple of lines, buried deep in a local rag, and this was back in the 1970's. We were appalled that it only got that sort of coverage, I do think that those up the "TOP" had influence in what was printed because they didn't want the Inspector named, which to me was a bit stupid as from what I understand it is a matter of public record when its been to court so why try to play it down.... should have been front page headlines........

Thanks keefy, that is a shame, I thought it might have been a bit more recent:)

I did used to have a copy of it, but about 5 house moves later I haven't seen it for a few years, the paper itself went kaput (A very large fire) so no way or trying to dig it up either..//The particular Officer was then promoted to the next rank up, and a few months later got promotion again and returned back to the original station, from where he retired under a cloud shall I say..... something to do with possible assaults charges........ the mind boggles....... I wonder if he signed up for that security company??

I popped into a local supermarket today and saw a huge sign which stated.

"Plain Clothes police officers patrol this store"

Can it be assumed that rather than pay a private firm, they are contributing to the salaries of "real" police officers?

I popped into a local supermarket today and saw a huge sign which stated.

 

"Plain Clothes police officers patrol this store"

 

Can it be assumed that rather than pay a private firm, they are contributing to the salaries of "real" police officers?

I think they probably mean: "Plain clothes police officers sometimes buy their sandwiches here"

It's a bit like those stickers you see on cars that say: "Powered by fairy dust"; when you see the driver, you realise that it means: "Powered by pies".

I knew several police officers that used to "moonlight" in big stores to supplement their pay, it saved the stores paying out to a private security firm who didn't know what the hell they could do or couldn't do.

And if those police officers had been caught, they could have been sacked. Secondary employment in the police force is a no-no. The stores who employed them would have been in big trouble. too.

It was a risk they took ,just the same as i did when I was a Fireman......

If, as my reading of this case is off on a slight tangent, surely a mortgage shortfall cannot be legal as it is claiming damages - ie the remaining part of the contract which cannot now take place as the property has been seized and resold.... means that you can use Dunlop in a mortgage shortfall claim?

If, as my reading of this case is off on a slight tangent, surely a mortgage shortfall cannot be legal as it is claiming damages - ie the remaining part of the contract which cannot now take place as the property has been seized and resold.... means that you can use Dunlop in a mortgage shortfall claim?

It's a bit more complicated than that as those who provide mortgages can be thoroughly dishonest. Some will say they have suffered loss and are entitled to the shortfall, despite the fact that there is a duty, in law, to mitigate losses as much as possible. Some mortgage providers have been known to deliberately sell repossessed properties at artificially low prices in order to make more money. The problem is, they can afford very clever barristers to pull the wool over the eyes of judges. There is a need for change in property law which is long overdue. Our current property law is based on the feudal system they had in the Middle Ages. The system they have in Scotland is a lot simpler, fairer and easier to understand. I'm sure if there are any caggers from Scotland who know differently, they will tell me.

As far as I am aware it's the original opinion. It's on RLP's website.

 

Nice to see you here, by the way.

Thanks. Right. I have read Richard Mawrey's Opinions with some pleasure. I have to say I do NOT like the random, and often un-argued, criticisms on this site of Mr Mawrey's advice. To assist I set out some points:

1. Mr Mawrey has suggested what seems to me a good arguable case on the CCA stuff to put up against the skeletal Law Commission view. Possibly wrong in the end (especially in respect of some obvious public policy bear-traps), but brilliant work and strategically very useful for any ripoff merchants out there if they want a couple of years delay. Provided, that is, it's even relevant to the test case at issue, and they don't mind gambling circa 0.4-1 million taking it all the way to the Supreme Court (remember the other side even if pro bono will still claim costs for the Access to Justice Foundation). I think they'd satisfy a couple of the special threshold requirements (if I'm wrong the SC'd just kick it out at the permission stage). However this is probably irrelevant to the more interesting point, which is:

2. His core general argument on criminals not being consumers at the same time is interesting, and may well be sound. I loved it, and it shines through he must have had heaps of fun writing it. The only problem is - and it's not his fault at all - it might just fail to refer to anything relevant to civil recovery. It's a straw-man argument (subspecies of red-herring). Probably brilliant for black propaganda, probably useless for the torts associated with civil recovery. This is absolutely NOT Richard Mawrey's bad - no matter how good he is as a lawyer (and I need say no more than he IS, after all, a QC), he's limited like anyone else to his instructions, and the question came from his instructors, as did his factual instructions. By imprecise analogy, if I were lucky enough to be offered a nice fat fee for giving nil-consequence perfectly sound answers to questions of the sort "What are the legal consequences of the moon being made of criminally green cheese" and "what should we do about those nasty qango folk that say not all moon-rocks are made of green cheese"), hey I'd take it. Wouldn't you? Not my fault if the paying client has joined the Silly Party. Give the punters what they want.

There are two alternative approaches in dealing with this type of argument:

(a) "When your opponent sets up a straw man, set it on fire and kick the cinders around the stage" www fallacyfiles.org / strawman.html

(b) "If a person commits this consciously they are either deceptive or intellectually dishonest. If done unconsciously then we should feel pity for them and try to be as patient and compassionate as possible." logical-critical-thinking.com / logical-fallacy / red-herring-fallacy

I prefer the latter. Therefore, please show compassion to the retailers and their agency dupes and their gentle security managers as they work through this difficult time (inter alia, being asked for the first time to comply with s.24A Police and Criminal Evidence Act 1984). In particular, please preserve their anonymity. Oh, and next time, ask for costs if any of the players are the same. That may help the poor lambs focus their minds. (Yes, these are small claims, but I recently experienced a succession of costs awards for the Claimant in a defended civil recovery small claim, circa 4.7k from the first contested hearing alone, despite no prior form by the Defendant).

3. I laughed out loud when I saw Mr Mawrey's conclusion - with which I concur - in his second Opinion where he engagingly suggests the retailers should "put up or shut up". One may suspect Mr Mawrey has a sense of humour and looks forward to it with as much pleasure as everyone else.

Now the transcript of the entire hearing

http://www.consumeractiongroup.co.uk/forum/showthread.php?369114-Judgment-A-Retailer-v-Ms-B-and-Ms-K-Oxford-County-Court-9-May-2012

I am sure the poor lambs in the retail industry are having some difficulty coming to terms with the fact they and their security staff now have to comply with Section 24A, Police & Criminal Evidence Act 1984 and can no longer get away with the stunts they have pulled in the past. It must have come as an awful shock to them. Lol!

S24a applies for when a shop's security officers apprehend someone outside their store. Common law and the 1953 prevention of crime act (read the MP's comments on the bill in Hansard) allow different courses of action to be taken on private premises but shops are public places according to a ruling somewhere around 1997, even behind the counter. As for handcuffs or the like, does a police officer carry a baton under as a common law right or with crown immunity? The answer is the former, which is a surprise to many police officers.

S24a applies for when a shop's security officers apprehend someone outside their store...

Summary: s.24 is for police. s.24A is for everyone else. Interestingly, if security guards wrongly execute it, they might render themselves open to arrest by the police or anyone else, including their intended victim (not recommended, they're not renowned for their sense of humour).

All posts made in respect of RLP allegedly making a claim in their own name have been moved to a thread of their own.

Link below if you wish to join the discussion.

http://www.consumeractiongroup.co.uk/forum/showthread.php?461951-RLP-allegedly-making-a-claim-in-their-own-name-!