Archive | July 23, 2009

Please don’t gamble in the comments section of the blog…….

July 23, 2009

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Source: Sunday Business Post write-up: http://www.sbpost.ie/post/pages/p/story.aspx-qqqt=Business+Of+Law-qqqm=nav-qqqid=41591-qqqx=1.asp; Full case report: http://www.bailii.org/ie/cases/IEHC/2009/H133.html

Mulvaney & Others v. Sporting Exchange Ltd (Trading as Betfair) & others [2009] IEHC 133

The two linked cases both concern bookmakers (Seamus Mulvaney and Ellen Martin) who are claiming damages for libellous comments posted by third parties on a forum hosted by Betfair Ltd. Although a number of issues arise in each of the cases, the main focus in this preliminary judgment was on the applicability of European Directive 2000/31/EC (the E-Commerce Directive) which had been transposed into Irish law by the European Communities (Directive 2000/1/EC) Regulations, 2003 (SI 69 of 2003) ahead of a full defamation trial.

This issue is important because while the E-Commerce Directive was designed to remove obstacles to cross-border online services, Article 14 of the Directive can also exempt internet intermediaries from liability for things they host, but did not create. The problem for Betfair is that Article 1(5)(d) of the Directive does not apply to gambling activities. If the court therefore held that the chatroom constituted gambling or betting, then Betfair could not rely on the Directive as a defence.

Ultimately, at [4.15] the court decided that because ‘no significant nexus’ operated between the chatroom forum and the betting sections of the website, no gambling did take place in that area and the Directive did apply.

Given that Betfair could rely on the Directive, the next questions to be answered were whether Betfair was an “intermediary service provider” and if so whether provision of a chatroom comes within the Directive? At [5.14], the Court agreed that it did and held that the use of a chatroom forum by third parties did amount to hosting an ‘information society service’ for the purposes of the Directive. Betfair can therefore rely on the E-Commerce Directive as a defence at the full defamation trial, although whether it will succeed or not will depend on the action that Betfair ultimately took when it became aware of the comments.

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Is that your horse?

July 23, 2009

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Source:  full case report – http://www.bailii.org/ie/cases/IEHC/2009/H2.html

O’Brien v. Derwin & Others [2009] IEHC

This case concerns a traffic collision on the night of the 21st October 1998 on the N6 road between Athlone and Moate. The claimant’s car collided with a number of horses loose on the road before subsequently crashing into a concrete fence post. The claimant suffered brain damage in the collision, while one horse was killed and another injured.

The issue before the court was whether, on the balance of probabilities, the defendants owned and/or controlled the horses that were loose, and were negligent in allowing them to escape onto the highway causing the accident [3].

As no one had claimed either horse, it was left to the court to decide who the probable owners were. Witnesses described both animals as fine big horses and valued at between €3-10,000 [21]. Because the injured horse was also registered on the Show jumping Association of Ireland records, from here it could be traced to the defendant. Having reached this conclusion, it was then reasonable for the court to conclude that both horses were under the defendant’s control on the night of the accident [23].

Using photographs taken by the claimant’s son the day after the accident [14] and a site visit by the court [15], Mr Justice Charleton concluded that the condition of the fencing (or lack of) was inadequate and as such it was likely that a number of horses did escape from the field onto the highway that evening causing the crash. What then most likely happened is that the remaining horses were rounded up by the defendants that night and hurriedly transferred to another property [26]. The defendants were therefore held liable for the full costs of the accident.

The claimant was awarded €337,394.02 (€160,000 general damages, €177,394.02 special damages)

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Two bites of the legal cherry?

July 23, 2009

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Source: Full case report: (WESTLAW), see also the original tribunal hearing report in the Yorkshire Post containing more detail about the specific allegations: http://www.yorkshirepost.co.uk/news/Black-employee-wins-her-race.1253995.jp

Campbell v. Leeds United Association Football (in liquidation) [2009] EW Misc 4 (EWCC)

The case (heard in Leeds County Court) concerned a claim for psychiatric damages by Yvonne Campbell, a waitress and later banqueting manager at Leeds Utd Football club. Yvonne had earlier won two claims for damages for direct discrimination on the grounds of race, sex, victimisation and harassment at two employment tribunals in 2005 and 2006. She was awarded £5,000 by the first tribunal, and a remedy hearing was directed to be convened for the second tribunal, but in the end was never held (The Schedule of Loss for this second claim included psychiatric loss and loss of earnings and amounted to at least £110,000).

The problem is that in May 2007, Leeds United went into creditor’s voluntary liquidation and no return is therefore expected for unsecured creditors like Mrs Campbell. Although Leeds Utd were insured against claims by employees for personal injuries caused by negligence / breach of statutory duty, they were not insured against employment tribunal claims. The case is therefore Mrs Campbell’s attempt to secure damages via an alternative method. Indeed, the court noted at [11] that it is common ground that the allegations made are the virtually the same as those made before the Tribunal. The only difference is that the court case is based on a breach of regulations 3(1), 3(3), 3(6)(a), 4, 5(1), 5(2), 6, 7, 10 and 13(1) of the Management of Health & Safety at Work Regulations 1999, which led to a foreseeable risk of injury attributable to stress, rather than the Statutory direct discrimination actions argued at the Tribunal.

Although Leeds Utd tried to argue that Mrs Campbell was barred by estoppel from arguing essentially the same points, the Court held that a finding of discrimination was an entirely separate issue from negligence [24]. The court also ruled that Henderson v. Henderson (a principle that a party should not be allowed to reopen old cases to introduce new evidence) did not apply to the Tribunal’s assessment of psychiatric loss as no assessment had in fact taken place [36], and it would amount to a denial of justice if Mrs Campbell’s claim was struck out [37].

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