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WHO
TO SUE: If you are contemplating a claim in negligence, the
biggest problem is often deciding who to sue. The answer to
that is who is responsible. The second answer is: who has
the money - there's no point going after a man of straw or an
insolvent company. We know Council's do, but then they are
not playing with their own money - the ratepayer foots the bill,
and up until October 2000 there was no Human Rights Act with which
to put up a decent fight.
However,
a Council is much like any other company (corporation) and it has
a bottomless pit of other peoples money. Only one Council
has ever gone bankrupt as far as we know (Welwyn Hatfield Garden
City Council) and the Claimant still got their £48 million in
damages, the Council just raised their rates - we know it stinks
for the ratepayer - but there so few controls on Councils and the District
Auditor and Ombudsman
are just for show.
If
an employee of a company causes damage to another person then the
company is vicariously liable for the tortious acts or omissions
of it's employees - this would be the first defendant, they having
the money. Equally, the employee is him or herself liable,
but unless they are well paid planning officers, or solicitors, it
may be a waste of time chasing them for damages. Now this is
where it gets interesting, for if there is misfeasance involving
the directors, then the directors are implicated and also
vicariously liable.
IMMUNITY
OF PUBLIC OFFICE: Some acts of parliament suggest that
Councillors and officers are immune from
prosecution even involving serious malfeasance
in public officer thanks to Sussex
police refusing to prosecute their masonic
chums where 12 complaints of misconduct were swept under the
carper. It is
true that regarding simple accident or negligence matters those
who run a public body are afforded some protected. However,
that is not the case where misfeasance is involved and where
Officers and Councillors have worked together (become party to a
cover up) to hide what otherwise may have begun as a simple
mistake, or indeed failed to prevent discrimination or breaches of
Articles 6, 8,
10 or 14
on the Human Rights Act 1998. That is when it gets serious. For one
cover up, leads to ever more serious cover up or other diabolical
deeds (malfeasance).
The
case which set the precedent in the European Court of Human Rights
is Osman v United Kingdom 2000 29 EHRR 245.
The European Court found that although the "immunity"
granted to the Police by the state had legitimate aims, it was not
compatible with Article 6 of the Convention if the
"immunity" amounted to a blanket immunity without regard
to the merits of individual cases. There must be a
reasonable relationship of proportionality between the means
employed and the aim sought to be achieved. Being a public
body also, a Council's employees/members come within the scope of
this finding.
Most
Councils take out a public liability policy to protect employees
and Councillors. However, insurers
may refuse to honour premiums where members knowingly
break the law, relying on the insurer to cough up come what
may. That is like insuring your car, then deliberately
driving it into a wall. Whereas, a driver has a duty to his
insurer and other road users, to avoid a collision.
WHERE
TO SUE: If your Claim is for £15,000 or less, then proceed in the
County Court. If your Claim is likely to exceed £50,000 and
involves Human Rights issues, you are looking at a High Court,
Queens Bench action. If in doubt ask the Court for
guidance. If you are a litigant in person, you may also be entitled to fee remission subject
to means testing. Additionally, the Court, being a public
body is obliged to ensure you receive a fair hearing in accordance
with Article 6, although this very much depends on how up to date
the practitioner(s) might be.
MEMBERS
LIABILITY: Are the members
immune?
THANKS
Lastly,
we would just like to say to the growing number of affected members
of the public who telephone or email us. We are so very pleased
if anything we have published can be used to further just decision
making in this less than great country of ours. We just want to keep
it great. The encouragement is mutual!
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