Oxford Retail Loss Prevention A Retailer / ** reveiwed September 2015 **

[BankFodder]

See attachment for full judgment

 

 

The claimant in the instant case has not established either that the staff in question

were “significantly diverted from their usual activities” or that there was “any

significant disruption to its business” which, in this type of case, may amount to the

same thing. Nor was there any loss of revenue generation.

 

15. The two security people, far from being diverted from their usual activities, were in

fact actively engaged in them. They were doing just what the claimants paid for

them to do. I do not think that it avails the claimants to say that because they were

busy apprehending, they could not be patrolling or doing camera invigilation. It

might just as well be observed that when they were patrolling they could not be

looking at the security cameras anyway. They could not carry out all aspects of their

job simultaneously in any event. The shop continued to trade undisturbed and there is

no evidence that any non-security staff were involved with these defendants.

 

16. So the claim in respect of staff time cannot, in my judgment, be established. I was

not clear if, at the end of the case, the other two alleged heads of loss – administrative

costs and security equipment costs – were still being sought. But, if so, these claims

too cannot succeed. Neither can be shown to be attributable to the defendants’

activities. The amounts spent by the claimant would have been identical had the

defendants stayed at home or limited their shoplifting to other establishments.

 

17. It follows that the claims must be dismissed but I do not want it to be thought by the

claimant company that there is any lack of sympathy for its understandable desire to

recoup, if it can, something from those who prey on it by shoplifting. It is, of course,

no part of the purpose of this judgment to advise in this connection though it may be

that some different approach akin to that used against motorists who park too long in

excess of the contractual licence might work better.

 

18. But, in the circumstances there must be judgment for the defendants.

 

 

A Retailer v Ms B and Ms K Approved Judgment 09.05.12.pdf

[BankFodder]

Proceedings after judgment

 

See attachment

A Retailer v Ms. B and Ms K PROCEEDINGS AFTER JGMT 09.05.12.pdf

[DBC]

I was rather puzzled by these remarks from the judge:-

 

It is, of course, no part of the purpose of this judgment to advise in this connection though it may be that some different approach akin to that used against motorists who park too long in excess of the contractual licence might work better.

 

when we all know that the PPC "business model" is equally flawed.

[ScarletPimpernel]

It is, of course, no part of the purpose of this judgment to advise in this connection though it may be that some different approach akin to that used against motorists who park too long in excess of the contractual licence might work better.

 

What, send out lots of increasingly desperate demands for payment and threats of court action that rarely happens, but when it does, the claimant loses?

 

The learned judge clearly has a sense of humour.

 

It must be remembered that in this case, the defendants admitted that they had stolen from A Retailer; this is not something CAG condones. We have yet to see a defended case where RLP have targeted someone who has done nothing wrong, which appears to happen often.

[Sherbet66]

Just to say a big THANKS to CAG for obtaining these transcripts of the Judgments in this important case.

[old bill]

I was rather puzzled by these remarks from the judge:-

 

It is, of course, no part of the purpose of this judgment to advise in this connection though it may be that some different approach akin to that used against motorists who park too long in excess of the contractual licence might work better.

 

when we all know that the PPC "business model" is equally flawed.

 

I have to agree with Scarlet Pimpernel that the learned judge has a sense of humour. It's almost as if he's daring them to try what PPCs do. From what I have seen of the forthcoming Freedom Act, PPCs will have to prove the existence of a contract in order to enforce their "penalty charges" and as we know, there is already in existence consumer protection legislation that forbids the imposition of civil penalties, except where permitted by statute or statutory instrument.

[DBC]

And the recent Upper Tax tribunal judgement has ruled that the only time a PPC can sue a motorist is if the PPC does actual own or has a substantial interest in that land.

[old bill]

There's also been a county court judgement - Vehicle Control Services -v- Ibbotson - where the claimant not only had the claim struck-out, but they had to pay £42.50 costs to the defendant and the MD of Vehicle Control Services had to make a written submission to the court, by 29 June 2012, explaining what authority the claimant had for bringing proceedings when they didn't have any contractual authority to do so. Parking Eye have also had the main part of a claim struck-out, leaving them around £5,000 out of pocket, and OPC and its directors were fined £30,000 by a magistrates court. The score so far: Motorists 4 PPCs 0

[old bill]

One piece of case law that R.L.P. companies do not seem to take into account is Dunlop Pneumatic Tyre Co. Ltd -v- New Garage & Motor Co. Ltd 1915. This piece of case law has formed a cornerstone of English Civil Litigation Law since the ruling was made. The basic thrust of the ruling is that a claimant can only claim for actual proven loss, that the person, etc., they are claiming from is actually responsible for the loss and that the damages sought do not exceed the actual loss suffered, that is, it does not put the claimant in a better position, financially, than before the loss or tort resulting in the loss occurred. In layman's terms, the claimant is not allowed to be better-off, financially, as a result.

 

Retail security is a cost centre, that is, it is not revenue-generating like a profit centre, which is revenue-generating, and the retailer will have costed the provision of security into the prices it charges for goods on sale at its premises.

 

In civil law, any attempt to make oneself better-off as the result of an alleged loss resulting from a civil tort is often described as Unjustifiable Enrichment.

[andydd]

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

[old bill]

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 think you'll find the learned judge was making a point. It's almost as if he was daring R.L.P. companies and their retail clients to try it. I doubt they would get very much sympathy from HHJ Harris if they did try to copy PPCs. Dunlop Pneumatic Tyre Co. Ltd -v- New Garage & Motor Co. Ltd 1915 has been around for the last 97 years and I am somewhat surprised a QC, such as Mawrey, did not warn RLP, in his advice to them, of the thrust of the Dunlop Pneumatic Tyre Co. Ltd case law. In short, it says, no-one can be better-off, financially, as the result of making a civil claim. A claimant can only claim what they have actually lost, they have to show that the person/company the allege was responsible for the loss or tort that resulted in the loss and any damages sought can only put them back in the same position they were in before the loss or tort that resulted in the loss occurred. The Oxford CC hearing clearly showed that A Retailer and RLP would have been better-off financially and HHJ Harris identified this and acted correctly by dismissing the claim and refusing leave to appeal. There is a something in Civil law called Unjustifiable Enrichment. In layman's terms, this means a person/company is receiving money they are not entitled to receive at someone else's expense.

[Anus Horribilis]

Interesting reference in para 10 of the main judgement to 'they apprehended them and they took them back to a holding room for questioning, for identification, to await the police and to complete some paperwork'.

 

Security staff have no right to take people anywhere, nor to question or identify them. They have the right to seize them and wait for the Police. Nothing more.

[old bill]

Alas, AH, as we all know, the reality is that corporate paranoia distorts what the law says constitutes Theft and innocent shoppers are assaulted and unlawfully detained by retail security muppets on an almost daily basis. You are correct, though, that retail security muppets have no right or power to take people anywhere, question or carry out identity checks, demand any personal details or to ask them sign any paperwork. They can only use reasonable force to detain a person who has or who is reasonably suspected of having committed an offence (Section 24A, Police & Criminal Evidence Act 1984). Although it does go on, it is illegal for retail security muppets to search an alleged shoplifter's bags, clothing or person. The usual excuse is "We have a common law right." As Jim Royle would say, "Common Law right, my arse".

[ScarletPimpernel]

I think that Wacky Jacky should read the judgment in Ibbotson, and especially the part where McIlwaine J talks about rights of audience.

[old bill]

The basic weakness in the legal arguments is that the claims made against the alleged shoplifters is Dunlop Pneumatic Tyre Co. Ltd. -v- New Garage & Motor Co. Ltd. 1915. This piece of case law has stood firm and formed a cornerstone of English Civil Litigation Law for the last 97 years. It's basic thrust is that if you are making a civil claim against another person, you must -

 

a. prove you have suffered actual and quantifiable loss;

b. prove the person you allege was responsible for the loss or whose alleged tort(s) were responsible for the loss was, actually, responsible for the loss; and

c. only claim such damages that put you back in the same position you were in before the alleged loss occurred.

 

Any damages sought must not put you in a better position, financially, that is, you must not make a profit by claiming damages.

 

The Oxford CC hearing clearly shows that the claimant would have been in a better position, financially, as a result of the damages they were seeking and failed to prove actual and quantifiable loss. HHJ Harris came to the correct decision, in my considered judgement, by striking-out the claim and refusing leave to appeal. Yes, I know I've already said something similar in another post in this thread, but if any civil recovery trolls are reading this, perhaps, they will learn from those of us who post on CAG who have legal training or law enforcement experience, like myself, that the cat is out of the bag, as regards civil recovery, and it is futile to try and fight back against the growing public outrage and anger against an industry that uses a business model that is based on a dodgy legal premise.

[citizenB]

I think that Wacky Jacky should read the judgment in Ibbotson, and especially the part where McIlwaine J talks about rights of audience.

 

 

And packing a toothbrush

[keefyboy]

When I trained for Securicor quite a few years ago, we were instructed that we could restrain a person, using reasonable force if that person was suspected of shoplifting, but we were made aware that that person has the right to refuse to follow the demands of the security guards and the shop, and if they have been forceably restrained, take out assault charges. and in those cases the police were to be called immediately.......... I luckily was never put in that position and was glad I wasn't as well

[ScarletPimpernel]

One of the reasons I find the practices of civil recovery companies so repugnant is because of something that happened to me a few years ago.

 

I had been shopping in the Belfast branch of a chain of department stores. I bought a wallet, and had queued for quite a while (it was just before Christmas) to pay for it. It was wrapped, and I departed. As I reached the door, I heard someone shouting 'Stop! Stop!'. I found myself grabbed by a security guard. I removed his hand from my arm, and demanded to know what he was doing. He told me that he thought I had an item in my bag that I had not paid for. I told him he was mistaken, and offered to show him my receipt. He then said that he thought I might have paid, but an electronic tag had triggered a silent alarm. I told him that that was not my problem; he had seen that I had paid for my goods and I intended to leave. He said that I needed to queue up again in order to have the tag removed, and that I had to give him my name and address. I refused, saying that I needed to return to my car or risk a ticket, and that he had no right to my details. The guard refused to identify himself.

 

He told me that if I tried to leave he'd prevent me, but refused to tell me on what grounds. I suggested that he call the police, and get a manager there. He refused to call the police, so I did. A manager appeared, and suggested that the guard's request was quite reasonable (later, I realised that they thought the tag was on something else, perhaps in a pocket). The PSNI arrived very quickly; the guard tried to waffle about suspicious activity, and then claimed that I had intimidated him! I naturally refuted this and asked to speak to the officer out of sight of the guard; I produced my security forces ID card, and told him my story.

 

The police officer went over to the guard and the manager, told them that he was satisfied as to my identity, and that he believed my story, that the guard had probably acted unlawfully because he didn't have reasonable suspicion that I'd stolen anything, and was the one at risk of arrest, and that I was going to go about my business. Just for good measure, he then required the guard to produce proof of identity - so I had a name for my complaint.

 

So, a happy ending, made all the nicer by the shop sending me £50 worth of vouchers for the inconvenience after I complained. They said that the guard was new, the company he worked for had just got the contract, and 'lessons have been identified'.

 

In my case, I was confident that I could stand my ground, and that the police were likely to be on-side - but most importantly, I knew I'd done nothing wrong. How differently it might have turned out!

[lostinfrance]

Any damages sought must not put you in a better position, financially, that is, you must not make a profit by claiming damages.

It is a basic tenet of English civil law & there is no such thing as punitive damages . This is why those mad judgements in the US where college kids or grannies are sued by record or movie companies claiming millions of dollars for illegal downloading would not hold water here in the UK.

[old bill]

Under English Law, Punitive Damages do exist, but these can only be awarded by a judge against a defendant where there is justifiable cause to award them, e.g. a defendant has behaved in the most appalling manner towards the claimant during the pre-action stage, chiefly, withholding evidence, or has attempted to mislead the court. It is at the discretion of the judge whether they are awarded.

 

The ruling in the case of Dunlop Pneumatic Tyre Co. Ltd. -v- New Garage and Motor Co. Ltd. 1915 has stood firm and formed a cornerstone of English Civil Litigation Law for the last 97 years. Keefyboy is quite correct in what he says, but the reality is, there is a small minority, in the private security industry, who go too far and/or get it wrong, as highlighted by Scarlet Pimpernel. These are the ones who need to be identified and removed from the industry. Also, retailers need to get real as to what the law says about what they can and cannot do.

[lostinfrance]

Under English Law, Punitive Damages do exist, but these can only be awarded by a judge against a defendant where there is justifiable cause to award them, e.g. a defendant has behaved in the most appalling manner towards the claimant during the pre-action stage, chiefly, withholding evidence, or has attempted to mislead the court. It is at the discretion of the judge whether they are awarded.

In fact when I typed that punitive damages don't exist I initially entered a caveat that there are some rare exceptions but then thought that would only confuse the issue so erased it. The basic principle still holds true though that if the plaintiff wins then the defendant can't be fined for wrongdoing. There may be exceptions but the normal principle is to restore the status quo ante & recompense the plaintiff for any loss not punish the defendant. Any punishment of wrongdoing by means of a fine is for criminal cases not civil cases.

[old bill]

In fact when I typed that punitive damages don't exist I initially entered a caveat that there are some rare exceptions but then thought that would only confuse the issue so erased it. The basic principle still holds true though that if the plaintiff wins then the defendant can't be fined for wrongdoing. There may be exceptions but the normal principle is to restore the status quo ante & recompense the plaintiff for any loss not punish the defendant. Any punishment of wrongdoing by means of a fine is for criminal cases not civil cases.

 

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.

[keefyboy]

I was a civilian working on the front desk of a Police Station and saw a security guard brought in on assault charges for throwing a Alleged shoplifter of a "Mars Bar" from a top supermarket, and detaining him with "Handcuffs" (purchase privately by the security Guard) but what he didn't realise was that the person he threw on the floor and cuffed was in fact a police officer at this nick, and that Police Inspector had been to that particular store 2 days before for a shoplifting case of a Bounty Bar, and there was allegations of assault but no visible injuries, the person that detained was innocent (as was the Police Inspector). The store pleaded to drop the case but this security guard turned out to have previous for Assault and the Police Inspector insisted that it go to court. It did and the guard was jailed for 4 months and the store was fined for something or other, fined £5K... The security company was criticized for not checking the people who they employed had not been checked for criminal convictions or anything.

That case sent a big message out to the shops in this particular town and many changed their security companies.

[citizenB]

Did that get reported in the press, keefyboy ?

[old bill]

I was a civilian working on the front desk of a Police Station and saw a security guard brought in on assault charges for throwing a Alleged shoplifter of a "Mars Bar" from a top supermarket, and detaining him with "Handcuffs" (purchase privately by the security Guard) but what he didn't realise was that the person he threw on the floor and cuffed was in fact a police officer at this nick, and that Police Inspector had been to that particular store 2 days before for a shoplifting case of a Bounty Bar, and there was allegations of assault but no visible injuries, the person that detained was innocent (as was the Police Inspector). The store pleaded to drop the case but this security guard turned out to have previous for Assault and the Police Inspector insisted that it go to court. It did and the guard was jailed for 4 months and the store was fined for something or other, fined £5K... The security company was criticized for not checking the people who they employed had not been checked for criminal convictions or anything.

That case sent a big message out to the shops in this particular town and many changed their security companies.

 

What you've posted, Keefyboy, illustrates perfectly what goes on in retail security. There was a private sector security guard in a covered market where I live, waltzing around with a pair of rigid handcuffs on show. A friend of mine asked me if this was legal. I checked with my local police force who confirmed, "No." When I mentioned this to the divisional superintendent, he went down to the covered market and confiscated the handcuffs from the private sector pillock.

 

The store you mention was probably fined for breaching Section 3, Health & Safety at Work Act 1974 (Failing to Ensure the Safety of the Public). I am surprised the security company did not lose their SIA licence over the incident you have highlighted.

 

The worst case of private sector security thuggery I have come across is a Jobcentre Plus office in my hometown where a security guard threw a claimant down a flight of concrete steps, seriously injuring the claimant. The paramedics who attended called the police and the security guard is now 18 months into a four-year stretch for GBH.