What Strategy Can the Plaintiff Choose to Pursue a against the Defendant for Breach of Confidence - Case Study Example

English legal methods Ans Diane would be deemed to be guilty under the Theft Act of 1968 which s that: “A person why by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving another of it, shall on conviction in indictment be liable to imprisonment for a term not exceeding 10 years.”1 Since she has appropriated Victor’s property without his knowledge or consent, she will be guilty of theft, however it must also be noted that she has thrown the pictures out form where they have been recovered, so they cannot be considered to be destroyed or that Victor has been “permanently deprived” of it. A theft qualifies as a criminal course of action, therefore, it will be tried by a Magistrates Court or the Crown, depending upon the nature and the severity of the offense. The matter will first of all, go to the police and they are the ones who will investigate the matter by questioning Victor, Diane, the council, other solicitors in Smith and Co, etc in order to derive an idea of how severe Diane’s crime may be adjudged to be. While the actus reus of the crime in this case is the direct appropriation of the pictures from Victor’s personal collection, the mens rea also supports the crime, because Diane’s intentions were obviously to cause harm to Victor by bringing shame on him. In arriving at a decision on the serious ness of the case, the police will look into the extent of the harm that has been caused to the Plaintiff by the theft. This will include mental shame and suffering and also dismissal from Smith and Co, which have been caused directly by Diane’s actions. Moreover the fact that Diane has sent out the pictures to all solicitors indicates that she intended to permanently interfere with his prospects for future employment. Therefore, the harm caused to Victor will be not only mental suffering, shame and tension on account of his sexual preferences which are his own business, but also jeopardizing of his future employment prospects and therefore damages to his career as a solicitor, since high standards of behavior are expected of a solicitor who is in a position of providing responsible advice to clients. Secondly, the Police will examine the motive for the crime and the extent to which it may be justified in the circumstances. While there is undoubtedly a cause of action in that Victor has cheated on Diane and may have therefore provoked her anger, the police will assess whether the extent of her crime is in proportion to the offense and in this case, there will be little justification to support Diane’s action in spewing out an essentially personal dispute onto public forums. There could also be a cause of action arising out of the Computer Misuse Act for “unauthorized access with intent to commit or facilitate commission of further offences.”2 Therefore, Diane’s transmission of the incriminating photographs over the Net would constitute unauthorized distribution of damaging material, thereby compounding the crime. But in spite of all this, Diane’s crime may still not be considered serious enough for the crown courts which deal with crimes of murder, rape and robbery3. Since Diane and Victor were living together and Victor has permitted Diane in the past to access his photos, the case for burglary is not so strong and Diane’s act would be construed as misappropriation4 rather than outright burglary. Diane’s crime would fall more into the category of misuse of information, which is usually considered to be a matter for civil rather than criminal law.5 From the police, Diane’s case will be taken to the crown prosecution Service which will examine the information supplied by the police and decide if the case is serious enough to be taken before a Court and if so, it will send it to the Magistrate’s Court. Therefore, in view of the circumstances, Diane would in all probability be tried in a magistrates Court, since this is the Court that deals with issues such as minor theft and shoplifting. Since Diane’s crime would be classified as the less serious kind, it will likely be put before the Magistrate Court for a summary trial, where there is no jury and no committal, rather there is a group of magistrates who are lay people and hear the case in order to decide what kind of action should be taken. Magistrates are not professional judges, they are informed, educated people from among the public who are able to adjudicate on minor matters.6 However, a Magistrate Court cannot decree a sentence that exceeds a six month imprisonment period or the payment of a fine in excess of 5000 pounds, whereas Section 15(1) of the Theft Act provides for a sentence up to 10 years, if justified in the circumstances of the case. The Magistrate Court is likely to hear the case based upon the information supplied by the Crown prosecution Service and police officials, which is in turn is the result of their investigations into the matter. Diane’s case is in the “either way” and the Court will permit Diane to enter a plea of guilty or not guilty. The Court is also likely to get the testimony of both Diane and Victor. It will then make an assessment of the seriousness of Diane’s crime and if she is found guilty, issue a sentence within its limitations. In view of the damages that have been caused to Victor and his prospects for future employment through Diane’s malice, the Court may deem the case serious enough to be sent to the Crown Courts for review, if they think a more serious sentence is called for. Alternatively, Victor can also appeal to the crown courts on matters of fact and law. The crown court will then proceed to try the case requiring evidence and witnesses and using the normal process of law. However, throughout all this, Diane will not have any say in where she is to be tried, rather she will have to submit to police investigation and appear in whichever Court she is summoned to appear. Ans 2:A: If Victor wishes to take action against his employers for the breach of his statutory employment rights, then he would be advised to take his complaint to the Employment Tribunal which adjudicated upon all work related matters, such as unfair dismissals, terms of employment of breaches of contracts. In the event the decision is not acceptable to him, he will also have the option to appeal to the Employment Appeals tribunal. There are several grounds upon which Victor can file his suit, including discriminatory treatment due to his sexual preferences and unfair dismissal. He can evoke the provisions of the Employment Relations Act of 2004, and also the amended provisions of the Race Relations Act that are scheduled to be operational in 2006, which also allow employees to file discrimination suits against their employers on the basis of their religion or sexual preferences. Victor will have to take care to file his compliant for unfair dismissal and discriminatory treatment within a specified time period, so that the statute of limitations does not run out as was the case in Gill v Whitbreads plc.7 Apart form the above cited grounds for dismissal, he can also show how his future employment prospects are likely to be affected, since the grounds for dismissal are that he has brought disrepute to the firm. However, Victor can argue that his sexual preferences are not likely to be a measure of his performance at work, and the fact that his private affairs have been brought into the public as a result of the deliberate malice of a co-worker for which he cannot be held liable. Ans 2B. If Victor wishes to pursue a case against Diana for breach of confidence, then his best course of action would be to take the matter to a County Court that deals with civil matters, rather than filing a criminal suit, since it is the civil aspects of the case that will predominate. Most tort cases and those concerning defamation and libel are generally heard in the civil courts, however the extent of the claim that victor wishes to make will determine the Court in which the case is filed. Since Victor’s claim against Diana for defamation, libel and breach of confidence is likely to involve a claim of up to 50,000 pounds, it could be processed at the County Court or at the High Court if Victor wishes to seek damages that are more than 50,000 pounds. Victor may not be able to process his case through a family court since the two of them are not yet married, however a County Court will be able to adjudicate on the grounds that Victor can raise. Although the extent of damages in tort are flexible and will depend upon judicial discretion, it is the civil courts which will be able to hear the case effectively and will be able to provide the relief Victor needs. There are issues of breach of trust, defamation, libel, dismissal from work, loss of earnings, mental anguish and suffering – all of which will constitute excellent grounds for Victor’s case against Diana. Cases are heard by one judge and the process is slow, however there are greater prospects for settling out of court, which could provide Victor with some relief. Moreover, by taking his case to the civil court, Victor has the chance to be awarded higher damages in order to compensate for the blow to his reputation, which is not the result of deliberate misconduct. Since Diana is now no longer even engaged to him and has made the dispute a public issue, the family courts where privacy is ensured, are not necessarily the right forums. Ans 3: Diane can fund the legal costs that will be involved by making use of her personal funds in order to pay for legal counsel. Additionally, being a solicitor, she could also opt to defend her own case, in which case she would not have to pay for legal counsel. Depending upon her financial status, she can also ask for court appointed counsel, which would reduce part of her costs. Currently, solicitors are paid by the hour for legal aid work, however these amounts are paid by the Government, especially in criminal cases, depending upon the financial condition of the defendant. Diane could also ask for a solicitor from one of the firms that bids for contract legal work that is purely aid based.8 There are also several other alternatives for legal aid that would be available for Diane to consider if she needs some help, through publicly funded legal services, such as the legal help scheme where she can receive free aid if her income is low.9 Additionally, if criminal proceedings are initiated against Diane, she may be eligible for help through criminal legal aid, which would cover the costs of legal counsel and the costs for bail applications, since there is a danger that she could lose her job or go to jail if she is found guilty of the crime that is alleged against her. Diane can approach the Legal Services Commission who will help her to determine the extent of legal aid that will be available to her, depending upon her income and the likelihood of losing her job due to the criminal proceedings. If Victor chooses to seek legal aid, he may be eligible for publicly funded legal representation, especially if his case before the Employment Tribunal is dismissed and he is forced to appeal the case. Moreover, since he has been unfairly dismissed and is likely to lose his job, he may also be eligible for legal aid to cover his costs on these grounds, even if he currently earns more income. However, Victor’s best source for legal aid would be to enter into a conditional fee agreement with a solicitor, since his case would qualify as a personal injury case. Legal aid is readily available for those in the low income category, however as stated by Lord Bingham, “it left many with means above a low ceiling in an unsatisfactory position, too well off to qualify for legal aid but too badly off to contemplate incurring the costs of contested litigation.”10 Therefore the Access to Justice Act of 1999 has introduced a new provision whereby in personal injury cases, where the defendant has a strong case, he can request a solicitor to take on the case. Under the provisions of Conditional Fee Agreements, a solicitor takes on a case which he feels is strong and agrees to collect his fees only if his client wins the case. If the client loses the case, the solicitor agrees to lose his fees. However, if the client wins the case, the solicitor is reimbursed not only his fees but also a percentage of whatever award amount is granted by the Courts. This would be the best option available for Victor, because it is a personal injury suit and it is likely that the Court will award him a settlement, to compensate for the defamation, libel and unfair dismissals that he has suffered. Ans 4: Section 58 of the Courts and Legal Services Act of 1990 sets out the basis upon which Conditional Fee Agreements are entered into and also specifies when such agreements will not be enforceable. The problem with Conditional fee Arrangements is that they are largely private arrangements between a client and his solicitor. Secondly, such agreements were not enforceable previously because it was believed that solicitors would try to influence the outcome of the case through unethical means, in view of the additional gains over and above their fees that would accrue to them by succeeding in a case where they had accepted a CFA. As stated by Lord Denning in the case of Re Trepca Mines Ltd, a legal advisor with a personal interest in a litigation might be tempted to “influence the damages, suppress the evidence, and even to suborn witnesses.”11 In the case of Hollins v Russell, it was stated that the CFAs were “condemned by English courts as tending to corrupt the administration of justice.”12 Lord Bingham also highlighted the possibility that solicitors would charge overblown rates for their fees in anticipation of rewards to be gained from success in the case, thereby ensuring that such fees would be paid out of the liabilities incurred by the defendants13. However Section 58 allowed CFA in certain cases when they satisfied CFA regulations in specific cases such as personal injury or human rights cases. The Conditional fee Arrangement offered a viable alternative to plaintiffs to pursue legal action through the Courts, initially restricted only to rich clients who were able to pay the litigation fees. The debate initiated by the Lord Chancellor on alternative means of legal funding proposed CFAs as a means to access justice by a wider pool of litigants, especially in view of reduced aid in certain legal fields14. In the case of Thai Trading v Taylor15, a defendant won her case but refused to pay the solicitor his fees according to the CFA, claiming that it was unenforceable under the provisions of Section 58. The case of Hollins v Russell was also notable in that it set forth a case contending that not every breach of the Stature of regulations would render a CFA unenforceable; rather the court had to question whether the enforcement of such a CFA would materially impact upon the client’s interests or the administration of justice? If the answer was negative, CFAs were to be held valid. In view of the possibility of corruption in the administration of justice, the Conditional Uplift fee Agreement in which the solicitor receives a 50% uplift in fees was deemed to be non enforceable, especially in an arbitration case16. The basic principle that underlies the refusal to legally enforce CFAs that are uplift agreements has to do with preserving the integrity of the justice system. As summed up by Daniel Atkinson, the present position on CFAs pursuant to the incorporation of Section 58 of the Courts and Legal Services Act of 1990 into the Access to Justice Act of 1999, is that Discounted Fee Agreements are now enforceable, while Conditional Uplift agreements may be enforceable only in relation to specific provisions such as in personal injury or Human rights cases17. Therefore, it may be noted that by incorporating the conditional aspects of Section 58 into the new provisions of enforcement of CFAs and allowing for the enforcement of such CFAs in certain conditions, it has become possible to provide an alternative means for clients to gain access to legal aid required to successfully access the criminal justice system, especially for those who are not so poor that they can fit into the Government legal aid category, yet not rich enough to be able to pay solicitor fees. By allowing for discounted fee arrangements, it is possible for clients to gain access to legal aid at more reasonable costs, while in the case of conditional uplift agreements, it provides an opportunity for those clients who have strong cases to be able to successfully motivate a lawyer to take upon himself/herself the attendant risks of fighting a case where losses could potentially be offset by greater gains. Bibliography Legislation: * Computer Misuse Act of 1990 * Theft Act of 1968 * Access to Justice Act of 1999 * Courts and Legal Services Act of 1990 Cases: * Bevan Ashford v Geoff Yeandle Limited (1998) 3 All ER 238 ChD * Callery v Gray (2002) UKHL 28 [online] available at: http://www.hrothgar.co.uk/YAWS/reps/28.htm * Gill v. Whitbreads Plc [2000] EAT 1274_99_0704 (7 April 2000) * Hollins v Russel (2003) EWCA Civ 718 at 10 [online] available at: http://www.hrothgar.co.uk/YAWS/reps/718.htm * Oxford v Moss (1978) Cr App R 183 * Re Trepca Mines Ltd (no: 2) (1963) CA * Thai Trading Co v Taylor (1998) QB 781 Other: * Atkinson, Danie,l, 1999. Contingency fees. [Online] available at: http://www.clientplus.co.uk/clientplus/legal/asp/confees.asp * Firms to bid for legal aid work . [online] available at: http://news.bbc.co.uk/1/hi/uk/4696928.stm * Help with legal costs [online] available at: http://www.adviceguide.org.uk/index/your_rights/legal_system/help_with_legal_costs.htm * Understanding the court system and tribunals. BBC [Online] available at: www.bbc.co.uk/dna/actionnetwork/A2066951 Read More