Pressure is mounting on domestic violence abusers to stop their actions towards spouses and children with the announcement of a new Government programme. One of the new Government’s policies is that, whenever possible, offenders should contribute to victims’ services and programmes tackling abuse as part of their reparation. The plan is to use proceeds from the Victim Surcharge to deliver up to 15 new rape crisis centres, and give existing rape crisis centres more stable, long-term funding.

The Victims Surcharge system currently raises money to support victims of crime and witnesses from offenders whose sentence is, or includes, a fine. The Government are also looking to improve ways that rape complaints are dealt with by the authorities, and beginning a consultation process. Domestic violence can take many forms including beatings, burnings, threats, sexual abuse, taunting and bullying.

In the UK more than two women per week are killed by current or ex-partners, and one in four women in the UK experience domestic violence in their lifetime, according to UK charity Women’s Aid, often resulting in terrible injuries. The latest domestic violence figures are terrible:

• Domestic violence accounts for between 16 per cent and one quarter of all recorded violent crime.
• One incident of domestic abuse is reported to the police every minute.
• 45 per cent of women and 26 per cent of men have experienced at least one incident of inter-personal violence in their lifetimes.

Although men are also victims of domestic violence it is women that are much more likely to be victims of domestic violence and abuse than men.

The Government’s ambition to end violence against women and girls’ has been laid out by Theresa May, speaking at the annual Women’s Aid Conference. Theresa May says the new Government’s plans also include supporting a pilot scheme to help victims of domestic violence who have no recourse to public funds because of their immigration status. Home Secretary and Minister for Women and Equalities Theresa May said:

“As both Home Secretary and Minister for Women and Equalities I believe I have a unique opportunity to bring about real change to the lives and the status of women in this country and my ambition is nothing less than ending violence against women and girls.

“I am under no illusion though; this will take time and effort. In these tough economic times, while Government has a clear role to play, it’s vital that we all work together and with a more considered,  targeted and sensible approach I believe we will achieve real results.

“I can confirm our commitment to continue funding the No Recourse to Public Funds scheme and to more long-term, stable funding for rape crisis centres to support the many women who experience abuse. As well as this we will work towards providing real solutions to prevent violence against women from happening in the first place.”

The Home Office is planning a cross-government ministerial violence against women meeting to discuss new, improved approaches to tackling the issue of domestic violence.

Victims of domestic violence can also apply for injury compensation via the Criminal Injuries Compensation Scheme (CICA).

When a couple divorce and financial arrangements have to be sorted out, there are occasions when the court may decide that assets not owned by the divorcing couple should be taken into account.

In a recent case, a couple with three children divorced after 20 years of marriage. They had enjoyed a high standard of living, which was largely funded by a trust of which the husband was a beneficiary. The trust had been set up by the husband’s father, who is extremely wealthy. Following the break-up of the marriage, the man’s father claimed that no future gifts would be given to his son and that the prior gifts had been for business purposes.

However, the High Court considered that the gifts and loans to the man were not made for business purposes and the evidence given in that regard had not been full and frank. The wife was awarded a capital sum of £3 million, to purchase a house for herself, and periodical payments totalling £3.25 million, leaving the husband with his trust interests intact and personal assets of £1.6 million.

Peter Sellers, the comic actor known for his roles in Doctor Strangelove and The Pink Panther, may have tried to change his will just hours before he died, according to legal document found recently. The letter suggests that Sellers tried to stop his fortune passing to his fourth wife, Lynne Frederick, just before his fatal heart attack in 1980.

However, as the papers were never made official, Ms Frederick inherited the majority of the actor’s wealth, while his children received token amounts. “This document is exceptional on two fronts,” said Auctioneer Henry Aldridge and Son of Devises, which sold the document at the weekend.

“One, that it was the very last item ever to be signed by Peter, and two, because his daughter Victoria was left just £800 in his will.” If the letter had been known about, the auction house went on to say, Victoria Sellers would have inherited £200,000 on her 21st birthday.

Source: http://www.bpcollins.co.uk/wills-trusts–probate-legal-document-reveals-sellers-tried-to-change-will-438018197-19900419.php

People who stay in education for longer appear to be better able to compensate for the effects of dementia on the brain, a study suggests.

A UK and Finnish team found those with more education were as likely to show the signs of dementia in their brains at death as those with less. But they were less likely to have displayed symptoms during their lifetime, the study in Brain said. Experts said scientists now had to find out why the effect occurred.

Over the past decade, studies on dementia have consistently shown that the more time you spend in education, the lower the risk of dementia. Post-mortems showed the pathology – signs of disease – in the brains of people with and without long educations were at similar levels. But the researchers found those with more education are better able to compensate for the effects of the condition.

It also showed that, for each year spent in education, there was an 11% decreased risk of developing dementia. Dr Hannah Keage of the University of Cambridge, who co-authored the study, said: “Previous research has shown that there is not a one-to-one relationship between being diagnosed with dementia during life and changes seen in the brain at death.

“One person may show lots of pathology in their brain while another shows very little, yet both may have had dementia. “Our study shows education in early life appears to enable some people to cope with a lot of changes in their brain before showing dementia symptoms.”

The researchers used data from the Eclipse collaboration, which combines the three European population-based longitudinal studies of ageing from the UK and Finland which have assessed people for up to 20 years. Professor Carol Brayne, who led the study, said: “Education is known to be good for population health and equity.

“This study provides strong support for investment in early life factors which should have an impact on society and the whole lifespan. ”This is hugely relevant to policy decisions about the importance of resource allocation between health and education.”

Ruth Sutherland, chief executive of the Alzheimer’s Society, said: “This is the largest study ever to confirm that hitting the books could help you fight the symptoms of dementia in later life. What we don’t know is why a longer education is so good for you.

“It could be that the types of people who study longer have large brains which adapt better to changes associated with dementia.

“Another reason could be that educated people find ways of managing or hiding their symptoms.”

She added: “We now need more research to find out why an education can make the brain more ‘dementia resistant’. Until then the message appears to be stay in school.”

Rebecca Wood, chief executive of the Alzheimer’s Research Trust, added: “During dementia, proteins build up in the brain and nerve cells become damaged. This research suggests that education is not able to stop the damage but enables the brain to cope better and alleviate its impact. ”

Source: http://www.bbc.co.uk/news/health-10741274

Following a series of cases involving unqualified will writers, the Office of Fair Trading (OFT) has announced that it has approved a Code of Practice which will apply to members of the Institute of Professional Will Writers (IPW).

The code of practice will apply to the 190 members of the IPW. Whilst the code of practice is to be welcomed, it should be remembered that 80 per cent of will writers are not members of the IPW. Will writers are not subject to compulsory regulation and the market is awash with organisations and individuals offering will-writing services who have no relevant qualifications or proven competence. The code of practice requires IPW members to pass tests of competence, to protect customers’ deposits in the event that they are unable to provide the promised service and to provide an independent redress scheme.

Regrettably, the Government has not stepped in to prohibit the preparation of wills by unqualified will writers and there is as yet no legal requirement for any will writer (including those who are members of the IPW scheme) to be covered by comprehensive indemnity insurance for their clients’ protection. Solicitors who undertake this work have passed stringent academic and professional examinations and undergone rigorous professional training, and are also required to have professional indemnity insurance. Problems with the services provided by will writers have abounded in recent years, with complaints of wills being lost and errors in drafting being regrettably common. Recently a will writer was convicted of stealing £80,000 from an estate of which he was the executor.

Following a series of cases involving unqualified will writers, the Office of Fair Trading (OFT) has announced that it has approved a Code of Practice which will apply to members of the Institute of Professional Will Writers (IPW). The code of practice will apply to the 190 members of the IPW. Whilst the code of practice is to be welcomed, it should be remembered that 80 per cent of will writers are not members of the IPW. Will writers are not subject to compulsory regulation and the market is awash with organisations and individuals offering will-writing services who have no relevant qualifications or proven competence.

The code of practice requires IPW members to pass tests of competence, to protect customers’ deposits in the event that they are unable to provide the promised service and to provide an independent redress scheme.
Regrettably, the Government has not stepped in to prohibit the preparation of wills by unqualified will writers and there is as yet no legal requirement for any will writer (including those who are members of the IPW scheme) to be covered by comprehensive indemnity insurance for their clients’ protection. Solicitors who undertake this work have passed stringent academic and professional examinations and undergone rigorous professional training, and are also required to have professional indemnity insurance.

Problems with the services provided by will writers have abounded in recent years, with complaints of wills being lost and errors in drafting being regrettably common. Recently a will writer was convicted of stealing £80,000 from an estate of which he was the executor.

Source: http://www.lockharts.co.uk/site/library/legalnews/OFT_will_writers_code_of_practice_a_welcome_first_step.html

The government was accused today of performing a U-turn on one of the most explosive issues of the general election when the health secretary, Andrew Lansley, left open the option of a “death tax” to fund long-term care for the elderly. Only months after waging a Tory poster campaign against the Labour plan, Lansley established a new independent commission that will be free to examine compulsory funding of long-term care. He is already under fire for abandoning commitments in the coalition agreement after he abolished primary care trusts.

Andy Burnham, the shadow health secretary, said: “Today’s announcement is yet another example of the Tories changing their tune only weeks after the election. When I called cross-party talks [as health secretary], Mr Lansley refused to attend unless a compulsory option was taken off the table. He even produced crass posters with gravestones to make his point. Now he is giving this commission free rein to look at compulsory options.” Lansley announced that the economist Andrew Dilnot would chair a commission on the funding of care and support that will report within a year. A Department of Health spokesman confirmed that the commission would be free to examine a variety of funding options.

“The commission will look at both voluntary insurance schemes and partnership models of funding,” the spokesman said. “We do not wish to constrain the commission from considering other options, such as compulsory schemes. It is important that the commission has the space to rigorously consider this complex social policy issue in full.” Lansley told the Commons health select committee: “I am not seeking to fetter [the commission]. We are looking at a partnership model to the extent that a publicly funded public care service is consistent with the fiscal framework. [The commission] will look at insurance and partnership models and [others] in previous green papers.”

Lansley said the commission was “fully aware” of the Tory manifesto proposal for an £8,000 voluntary insurance model to cover residential care costs. His remarks, the terms of reference for the commission and the coalition agreement indicate that the government’s preference is for a voluntary insurance scheme and a partnership funding scheme. The coalition agreement cited a partnership scheme, recommended by the banker Derek Wanless in a report for the King’s Fund in 2006, which concluded that “almost everyone” would make a contribution. Wanless said a minimum level of care would be provided free. For more care, people would make contributions that would be matched by the state up to a limit, with those on low incomes supported through benefits. The scheme would not involve means testing.

“Almost everyone makes some form of contribution, however modest, in the partnership model. This puts important incentives in place for people to save to provide for their needs in older age.” But Wanless warned: “Compared with means testing, partnership is not as progressive in that it reduces the differential between what poorer people pay and what better-off people pay. Wealthier people would pay less than under means testing and so the state would be contributing towards the cost of care for some people who could afford care themselves.” The existing system is heavily means tested, with councils containing demand by restricting access to people if they have savings or assets of £23,000 or more. By 2006, fewer households were receiving supported home care than in 1997, and fewer older people got publicly funded care at home than did in 2003.

The commission has to produce a system for England able to cope with an expected extra 1.7 million people needing care over the next 20 years, partly due to the ageing population ageing, with the number of people over 85 expected to double by 2026. Lansley said: “We know that one in five 65-year-olds today will need care costing more than £50,000. The answer is clear – we must develop a funding system for adult care and support that offers choice, is fair, value for money and is sustainable for the public finances in the long term.” A No 10 source said: “The prime minister and health secretary are absolutely clear that they do not support a death tax Their views have not changed.”

Source: http://www.guardian.co.uk/society/2010/jul/20/conservatives-deny-death-tax-uturn

The Met Police have apologised to two brother students and agreed to pay £25,000 in personal injury compensation.

Ashley and Russell Inglis were involved in protests at the Israeli Embassy in London on 3 January 2009 when the assaults took place. The Metropolitan Police have apologised and paid £12,500 each to the twin brothers for the unprovoked assaults which took place by police officers in the course of the protests outside the Israeli Embassy in London. Ashley Inglis initially wanted an apology from the police and complained to the Independent Police Complaints Commission (IPCC) and the Met. The Met ruled that there was nothing to answer as officers could not be identified and the incident had not been filmed by the police.

So a civil injury compensation claim against the police was brought and the Met eventually conceded and sent a letter apologising for the injury. A CCTV camera at the Royal Garden Hotel in Kensington had captured the incident. Russell Inglis said: “We presented no threat whatsoever to the police. We were simply exercising our democratic right to peaceful protest.” Michael Oswald of Bhatt Murphy solicitors, the solicitor for Ashley and Russell Inglis who handled the case, said: “The apology and the sums paid to our clients in satisfaction of their claims go some way toward the vindication and accountability they have sought.

“However, it is significant and regrettable that their attempt to achieve those objectives through the statutory police complaints system in the first instance came to nothing, and that they were required to bring their civil claims to compel the Metropolitan Police Commissioner to recognise the wrong that had been done.” Michael Oswald is an assistant solicitor in the police law team at Bhatt Murphy Solicitors, London and works with clients who have been subjected to misconduct at the hands of the state. The focus of his work is to enable his clients to achieve the redress they seek for the misconduct they have been subjected to.

Ashley Inglis was one of 17 complaints during a month of pro-Palestinian demonstrations which were filed with the Independent Police Complaints Commission. All were referred to the Met DPS- Directorate of Professional Standards. None resulted in any disciplinary action against an officer. The brothers claimed they were attacked without reason and suffered blows to the head. They proved they were presenting no threat at the time and were exercising a basic democratic right to protest. They claim the police who hit them tried to cover up the identifying numbers on their shoulders.

It was also reported at the time that the demonstration was not entirely peaceful on behalf of all protesters as video coverage showed. The Metropolitan Police suffered injuries to 55 of their officers that day. 76 people were arrested and charged with several offences, including violent disorder, during the series of Gaza demonstrations.

Source: http://www.personalinjurybureau.co.uk/headline/protesters-win-25000-injury-compensation-case-against-metropolitan-police

Insurers are detecting more fraudulent insurance claims than ever before according to figures released by the Association of British Insurers (ABI).

The ABI says that last year more than 2,000 dishonest insurance claims worth more than £16 million were detected every week, with many claims coming from bogus personal injury compensation claims. Nick Starling, the ABI’s Director of General Insurance and Health, says: “Reducing fraud remains an ongoing battle for the insurance industry. Our honest customers rightly object to having to pay higher premiums to subsidise the fraudulent minority, which is why insurers continue to up their game in the war on the cheats.

In a strong attack on bogus claims, Mr Starling continues: “Whether claiming against a third party for bogus personal injury or on their own insurance, fraudsters are more likely than ever to get caught, leading to more expensive and harder to obtain insurance and credit and the possibility of a criminal record.” Some of the 8,500 dishonest liability claims exposed involved bogus personal injuries such as a man who claimed he had fractured his hand after falling over a pothole in the street; when in fact he had sustained the injury after he punched a wall during a domestic dispute; which was a well reported case.

ABI figures show that in 2009 there were 122,000 fraudulent insurance claims uncovered which is up 14 per cent on 2008. The value of these claims, at £840 million, rose by a significant 14 per cent on the previous year. A total of four per cent of all claims by cost were fraudulent. This is similar to 2008, although double the figure of five years ago. The overall rise in dodgy insurance claims is seen as being due to a combination of insurers becoming increasingly sophisticated in their fraud detection, as well as an increase in the number of people submitting misleading claims due to the economic downturn.

With regards to personal injury claims, in particular, the ABI has identified a rise in the number of people attempting to claim against their local authority for injuries they said they sustained in accidents in the street. The ABI is the voice of the insurance and investment industry with members constituting over 90 per cent of the insurance market in the UK and 20 per cent across the EU. The ABI report follows a report by the Association of Personal Injury Lawyers (APIL) earlier this month warning consumers about what has become known as ‘third party capture’, a practice which involves insurance companies settling a claim directly with a personal injury victim of a policyholder, without the victim receiving independent legal advice.

An elderly Greek man has been awarded more than £110,000 in compensation after a Swedish dairy used his picture on a yoghurt pot.

The 77-year-old with his long greying moustache and red hat is a distinctive and colourful image depicting the Turkish recipe yoghurt pot. However the man took exception having his image exploited for commercial reasons, and especially as the case involved a Greek man in traditional dress on a Turkish yoghurt pot, which can be understood against the backdrop of the rivalry and conflict between the two nations going back for centuries.The man’s photo features on pots of Lindahl Turkish yoghurt, a popular yoghurt in Sweden.

A Greek friend of the man living in Stockholm told the man, Minas Karatzoglis, that his image was being widely distributed throughout Sweden on the pots. The row has also brewed into a Greek vs. Turkish rivalry in the two countries’ media with the Greek man taking legal action. The main legal point is that his photo was used without consent, After discovering his photo had been used without consent, and in this case for commercial use, he was entitled to seek compensation. The compensation transaction is reportedly between 1.5 million kronor – £110,000 – and 2 million kronor, which includes lawyer fees, the diary has revealed.

“We reached an agreement and everything has been signed by all parties. We can use his picture on all of our products, including on the Turkish yoghurt,” purchase manager for the Lindahl dairy, Tomas Axelsson, said.

The dairy, based in Joenkoeping, Sweden, said the compensation claim came as a shock. The company had bought the photograph in good faith from an image library. The story shows the legal dangers of using images without permission. Image copyright comes into existence at the point of creation so under normal circumstances the photographer will own the copyright for his or her work. While there is no general legal requirement to obtain someone’s right to take his or her photograph there are situations where photography can infringe on legal protections though, such as protection of children, national security, privacy laws, etc.

It is quite a complex legal area as many of these situations will have different laws in different countries, with different national laws and regulations. However, it is certainly unethical as well as illegal in many situations to exploit a person’s image without his or her consent. Not knowing you were not doing wrong is no defence. Basically, ultimately a picture can be taken without permission in most cases, but what is done with it as in this case can lead to legal actions and compensation if the integrity of the image is not protected.

The man says he was not against his face adorning the pots although he was surprised to get a call from a friend informing him. It was more that the yoghurt pot was branding him as Turkish. “For my client that was perhaps the biggest insult,” his lawyer said, a serious point which shows the sensitivity of national identity in such a case.

Source: http://www.personalinjurybureau.co.uk/headline/greek-man-wins-compensation-in-yoghurt-pot-case

U2 singer Bono has recovered from his back injury and U2 are preparing to tour again, including rescheduled dates following on from cancellations from earlier this year. Following Bono’s recovery from back surgery, the band are now preparing themselves for the opening dates of the U2 European Tour which kicks off in Turin, Italy next month. The singer has spoken for the first time about his back injury which he described as: “not a lot of fun.”

U2 had to pull out of their headline slot at the Glastonbury festival in June after Bono suffered his serious back problems, leading to emergency surgery. Adam Clayton, Larry Mullen, The Edge and Bono have now filmed a message for fans at U2.com declaring their return and thanking fans for standing by them. The band have also released full details of the rescheduled tour dates in the US and Canada which were postponed because singer Bono underwent his emergency back treatment.

The North American leg of their 360 tour had been due to start on 3 June in Salt Lake City but Bono had to undergo surgery in May.

Live Nation Entertainment have announced that the U2 360 tour dates in the US have all been rescheduled for Spring and Summer 2011 with all tickets being valid at the rescheduled performances.

New dates begin in May 2011 in Denver and end on 23 July in Minneapolis. The U2 2010 European tour, which has not been affected, begins as scheduled on August 6 in Turin. The new concerts were announced on U2′s website, where Bono spoke exclusively about his injury and thanked fans for their patience after being inconvenienced by the ticket cancellations. He also said that lying on a bed staring at the ceiling during his recovery had forced him to think up some great songs which the band may play live.

Earlier in the video guitarist The Edge joked that he had been looking around at other singing talent, referring to his appearance at Glastonbury with Muse but said that he decided the band had the best singer in Bono “He’s looking very well right now,” he said, introducing Bono. “I can sit, I can stand, I can move around a bit,” said Bono. “I’m feeling strong, feeling confident – know what I am saying – and ready. I’ve been rebuilt by German engineering better design I am told,” the singer joked, referring to his emergency surgery at Ludwig Maximilians University (LMU) Hospital in Munich following the back injury.

Bono suffered severe compression of the sciatic nerve including a serious tear in the ligament and a herniated disc. Bono added: “I’m going to be fighting fit next summer in the US. Looking forward to this summer in Europe. I actually wanted to apologise for the trouble that this injury has put you all through. Those of you who bought tickets, organised hotels, travel plans, it’s a very big deal. People go to a lot of trouble to get U2 tickets and we don’t take that for granted.”

U2’s manager Paul McGuinness also thanked fans for their ongoing support: “We are delighted the dates are rescheduled and in all the same venues we originally planned to play. It hasn’t been easy to accomplish this and I’d like to thank the managers of the many venues and sports teams across North America and Live Nation Global Touring for their help and cooperation in making this complex new plan possible. “Above all we want to thank the U2 fans for bearing with us. They are the best and the band wants to get back to where they belong, surrounded by their audience.”

The U2 360 Tour is produced by Live Nation Global Touring and sponsored in 2010 by BlackBerry. Full dates and ticketing info can be found at the U2 website.

Source: http://www.personalinjurybureau.co.uk/headline/bono-recovers-from-back-injury

Facebook is finally adopting a CEOP internet safety button on its websites, a long awaited panic button and information link offering online safety advice to young people.

The news follows a long-running debate between the UK’s national centre for protecting children, the Child Exploitation and Online Protection (CEOP) Centre, and Facebook; as well as other social networking sites.

The announcement has been made in the wake of ongoing concerns about child safety on Facebook and other internet sites which promote social interaction with strangers.

CEOP has long wanted all social network websites to adopt its one click button on their sites so children can get immediate police help and advice, in the event of any suspicious activity from other internet users.

There have been a number of high profile cases involving predators targeting children on networking websites. Young Facebook users across the UK are now the focus of a new initiative by CEOP and Facebook.

Now for the first time all Facebook users in the UK, especially those aged 13 to 18, can have direct access to CEOP’s advice and reporting centre. Youngsters will be able to ClickCEOP from their homepage, offering advice on online safety as well as a dedicated facility for reporting instances of inappropriate behaviour.

Chief Executive of CEOP Jim Gamble said:

“By adding this application, Facebook users will have direct access to all the services that sit behind our ClickCEOP button which should provide reassurance to every parent with teenagers on the site.

“We know from speaking to offenders that a visible deterrent could protect young people online. We urge all Facebook users to add the app and bookmark it so that others can see that they are in control online.”

Access to the ClickCEOP button will be provided via an application that users can add or bookmark so that it appears on their homepage as not only a constant source of help and reassurance for them but also as a strong visual signal to their friends, family and others that they are in control online.

Joanna Shields, Facebook’s Vice President for Europe, the Middle East and Africa (EMEA) said:

“There is no single silver bullet to making the internet safer but by joining forces with CEOP we have developed a comprehensive solution which marries our expertise in technology with CEOP’s expertise in online safety.

“Nothing is more important than the safety of our users, which is why we have invested so much in making Facebook one of the safest places on the internet.

“It is only through the constant and concerted effort of the industry, police, parents and young people themselves that we can all keep safe online – whether on Facebook or elsewhere.”

The application is backed by a new CEOP page that will look to engage with young people to help raise the profile of online safety.

The initiative is being seen as a welcome collaboration between CEOP and Facebook that combines Facebook technology expertise connecting people and organisations and CEOP’s knowledge of internet safety and security; as well as CEOP’s role as the national centre for child protection.

Lawyers for an eleven-year old child who claims he has suffered brain damage as a result of a defective vaccine have been left to ponder over the exact implications of the Supreme Court ruling in the case.

Paul Balen, a partner at Freeth Cartwright, has been acting for the claimant and said the ruling has left lawyers “baffled”.

Declan O’Byrne was given two doses of an anti-meningitis vaccine manufactured by French pharmaceutical giant Aventis Pasteur SA and distributed in Britain through its UK subsidiary, Aventis Pasteur MSD.

The boy’s family initially brought proceedings against the subsidiary within the strict ten-year timeframe set by the EU’s product liability directive. The distributor retorted that it was not the correct defendant and that the claimant should instead sue the parent company as the manufacturer of the drug. By the time this defence was put up however, the claim against the manufacturer was time-barred. Appeal judges have rejected a medical negligence claim by a prisoner who developed breast cancer in jail.

Cheryl Carter alleged that her prison doctor was negligent in failing to refer her to a breast clinic following her complaint of a lump in her right breast. Breast cancer was diagnosed after her release and she later had a mastectomy. Giving judgment in Carter v Ministry of Justice [2010] EWCA Civ 694, Sir Scott Baker said the trial judge’s “natural sympathy” for Carter led him to a conclusion that was “unsustainable in law”.

He went on: “Here we are concerned with whether a general practitioner was negligent. In determining what should have been done by Dr Premaratne, the judge was not entitled to impose his own opinion regardless of the practice of the medical profession.”

Sir Scott Baker said the trial judge, Sir Christopher Holland, had not referred to the guidelines established by case law nor “to the fact that there was, apparently, a responsible body of medical opinion that would not have referred Ms Carter on the facts he found in this case.

“Sad though the outcome of this case is, I cannot find any breach of duty on the part of Dr Premaratne. In a case such as the present, where a general practitioner has found nothing potentially sinister, the law does not require routine referral for specialist investigation.”

Lord Justice Leveson, who delivered the leading judgment, said Carter frequently attended the healthcare department of Cookham Wood for what the trial judge described as “all manner of complaints”.

She complained of a lump in her breast on separate occasions to three prison doctors. Sir Christopher rejected the claims against the first two doctors and found that the third, Dr Premaratne, had not been negligent in her examination but in failing to make a referral.

However, Leveson LJ said he could see “no basis” for the argument that the doctor was in breach of her duty. “On the contrary, in the light of the authorities governing allegations of clinical negligence, his decision that referral was not mandated is fatal to the claim.” Lord Justice Leveson allowed the appeal by the Ministry of Justice. Sir Scott Baker and Lady Justice Smith agreed.

Source: http://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=16429&c=3&eclipse_action=getsession

The claimant secured a substitution of defendant in the Court of Appeal but, after two references to the European Court of Justice, the Supreme Court has now ruled in O’Byrne v Aventis Pasteur [2010] UKSC 23 that this substitution was not allowed under the directive.

In its most recent ruling in the case, the European court held that substitution was contrary to the directive if it resulted in allowing the claimant to sue the producer outside the limitation period.

It left open the possibility to substitute the parent for the subsidiary where the parent company which manufactured the product determined when it was put into circulation – though only if proceedings against the subsidiary had already been brought within the ten-year limitation period.

Looking at the European court’s ruling, Lord Rodger said the parent-subsidiary relationship was only one factor to consider when identifying the entity controlling the putting into circulation of the product.

“The fact that [the subsidiary] was a wholly-owned subsidiary was simply one – by no means decisive – factor to be taken into account by domestic courts when assessing how closely the subsidiary was involved with its parent’s business as […] a producer”, he said.

“All the circumstances would have to be taken into account”, he continued. “If [the parent company] was indeed in a position to decide when the product was to be distributed, then [the subsidiary] would be integrated into the manufacturing process and so tightly controlled by [the parent] that proceedings against [the subsidiary] could properly be regarded as proceedings against the parent”.

Discussing the European court’s earlier ruling, SJ regular Paul Stanley QC suggested it allowed the distributor of the vaccine to be treated as a supplier that failed to identify the manufacturer within a reasonable time, which was then deemed to be a ‘producer’ under the directive and the correct defendant.

Stanley also said it remained open to the national court to assess whether the putting into circulation of the product in question was, in fact, determined by the parent company which manufactured it, and that the time limit was effectively paused against the producer.

The Supreme Court ruling however suggests that neither interpretation applied in the O’Byrne case. While accepting the possibility of substitution, the court decided the parent company and its subsidiary could not be regarded as one and the same in this case.

Paul Balen added that the only certainty in the justices’ decision was that “the old authorities on substitution are gone”, and that the only opening left to argue was the point on wholly-owned subsidiaries.

Source: http://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=16289&c=3&eclipse_action=getsession