RLP and the Oxford test case: The truth and the lies

[Legal Beagles]

Category: Civil Recovery



Earlier this year we published the judgment in the case A Retailer v Ms B & Ms K .



The case represented the first fully contested proceedings for civil recovery demands issued by the controversial Retail Loss Prevention Ltd (RLP) on behalf of major retailers attempting to claim loss suffered and damages in cases of alleged or admitted petty theft.


Today we publish the transcripts of the 2 day hearing at Oxford County Court which provide a deeper insight into how HHJ Harris reached his decision to dismiss the claim on all heads of count.


A Retailer v Ms B & Ms K, trial hearing, first day, 26 04 12
A Retailer v Ms B & Ms K, trial hearing, second day, 27 04 12





‘’RLP has tested these principles by successfully taking wrongdoers to court on behalf of our clients to create precedent test cases and recover compensation’’, proudly boasts Retail Loss Prevention (RLP) on its website.
In March 2011, during a Westminster Hall debate initiated by Simon Hughes MP, the then Minister for the Ministry of Justice, Jonathan Djanogly, noted that his officials could not find “any cases in which the issue [of the recoverability of the sums demanded by RLP] has been tested before the courts and a definitive judgment given … a test case might be a good idea“.


Two weeks later in an article in Retail Fraud, RLP managing director Jackie Lambert duly obliged, “We are pleased to advise that we have two of the CAB [Citizens Advice Bureau] cases at present going through the court system, which should hopefully address the testing issue (albeit not set case law)“. And Retail Fraud themselves noted that ‘’Clarity cannot come soon enough for many retailers who use civil recovery as a means of retrieving value from theft…’’.
On 8 April, Jackie Lambert confirmed to Citizens Advice that these cases were those of Ms B and the unrelated case of ‘Kate’. In the event, RLP offered Kate, a very vulnerable woman with serious mental health issues, a settlement of £90 (RLP had been demanding £165.48), which on the advice of CAB she accepted as they did not want Kate subjected to the stress of a trial. But the County Court claim was issued (by Shakespeares acting for A Retailer) against Ms B in late May.


After the issuing of the County Court claim, Shakespeares/RLP sought to get the case allocated to the Fast Track, which would have scuppered the defence of the claim as no one was in a position to underwrite the costs that would undoubtedly have been threatened. In their Allocation Questionnaire, Shakespeares stated: “Claim not straightforward, involves legal issues of general importance, and allegations of dishonesty” and (in the ‘Other information’ box) “The claim for loss raises legal and more general policy issues. The defendants have been backed by Citizens Advice Bureau, who have raised various objections to the principles behind civil loss recovery in claims brought by retailers against dishonest shoppers and/or employees. They desire the law to be settled by test cases, and have arranged pro bono representation by leading London lawyers for the first defendant.” The District Judge rejected this application but later suggested that, given the legal issues at stake, the case could be heard by a Circuit Judge, namely HHJ Harris, should the parties agree. They did and the scene was set.


Throughout the 2 day hearing RLP’s solicitor, Vanessa Willetts, sat directly behind counsel for the claimant, Mr Owen, passing him a stream of notes. One might have expected the claimant’s solicitors, Shakespeares, who were the instructing solicitors for A Retailer, to perform this task – had RLP not thought that the case had such legal significance for them and the lawfulness of their business model.


Indeed the judge, HHJ Harris, recognised that the case was brought with the primary purpose of testing the broader legal principles of civil recovery, commenting during the hearing that it was ‘’obviously a case which is thought to have some importance and it needs to be properly argued’’ (day 1 page 66) and that ‘’it is thought to have greater importance than a typical small claim.’’ (day 2 page 39).


And who was it that thought it important enough to take 2 days out from running her busy enterprise, which Denis MacShane MP described as a ‘’£15 million racket’’, to accompany Vanessa Willetts during the hearing? Step forward RLP managing director Jackie Lambert.


If this was anything other than a test case it would be impossible for the claimant to reconcile the value in bringing it. Lawyers familiar with the case estimate that A Retailer’s litigation costs were in the region of £20,000 – for a claim worth £137.50 plus up to £100 in costs.


So, consider the above.


Then consider this statement about the case from RLP’s website: ‘’In the first case [A Retailer], being referred to as some kind of test case in certain circles (which of course, it was not) the defence on this basis succeeded.’’
Now, using your skill and judgment, was this ‘’some kind of test case’’? Or not?



You can read more on the Oxford Test Case on Civil Recovery here (Transcripts) and here (Judgment) and join the discussion on the forum here.


You can read the ‘Retail Fraud’ article here. Retail Fraud article 05 04 11 re CAB cases in court system

[Legal Beagles]

Re: RLP and the Oxford test case: The truth and the lies

Here is a synopsis of the transcripts:

The sum claimed for ‘staff time’ spent dealing with the incident

One of the most revealing sections of the trial hearing transcript is pages 46-61: the cross-examination by the Defendants’ counsel of the Claimant’s key witness, namely the TSS security manager who dealt with the incident, Susan Kent.
Whereas RLP claims that the pre-determined sum of £82.50 in respect of staff time that it demanded in this case – and which it routinely demands in tens of thousands of similar shoplifting-related cases – is a “very carefully calculated” sum that can “never exceed the actual losses incurred in an incident of this nature”, the cross-examination showed that this sum, far from being a mere “contribution” to those actual losses, is a considerable exaggeration of them.
In its Schedule of Loss, submitted to the Court, the Claimant indicated that Mrs Kent had spent no less than six hours and 45 minutes dealing with the incident, at a total cost to the Claimant of £81.47.


This time included: 25 minutes “observing Defendants on shop floor and bringing them into detention room”; 30 minutes “waiting for the police to arrive”; 40 minutes “liaising with the Police upon arrival”; one hour and 35 minutes “preparing witness statement and checking evidence for the Police”; 40 minutes “preparing other evidence for police”; 50 minutes “examining goods to ensure fit for re-sale and replacing items back on shop floor”; and one hour and 10 minutes “preparing the paperwork for guarding contractor, claimant and RLP”.



Given that it was agreed that the incident began at about 4.00 pm, this implied that Mrs Kent had been engaged solely in dealing with this incident from about 4.00 pm until about 10.45 pm – that is, two hours and 45 minutes after her shift finished at 8.00 pm (see page 46 of day one).

In addition, the Schedule of Loss indicated that a second security guard, Tony Cummings, had spent two hours and 25 minutes assisting Mrs Kent in dealing with the incident, at a total cost of £25.21. Total actual costs (or losses) for the staff time of Mrs Kent and Mr Cummings, according to this Schedule of Loss, were therefore £106.68 – a figure which does indeed exceed the sum of £82.50 included in the £137.50 that RLP had demanded from the defendants.

Early on in the trial hearing, the Claimant corrected the hourly pay rates of Mrs Kent and Mr Cummings given in the Schedule of Loss, with the effect that the total costs claimed for their time changed to £94.17 and £24.82 respectively, a grand total of £118.99 (see pages 26-27 of day one).

However, under cross-examination by the Defendants’ counsel, Mrs Kent eventually conceded that she had in fact spent, at most, just one hour and 10 minutes dealing with the incident (see page 57 of day one).

Similarly, Mr Cummings later conceded that he had spent, at most, just 35 minutes assisting Mrs Kent (see page 69).

Applying the (revised) hourly pay rates cited by the Claimant during the trial hearing, this gives a total cost of no more than £23.03 – or just 19 per cent of the £118.99 asserted by the Claimant as the actual cost of Mrs Kent and Mr Cummings’s time, and less than one-third of the £82.50 sum demanded by RLP for ‘staff/management time’ as part of its pre-determined, fixed sum demand for £137.50.

In the event, of course, HHJ Harris ruled that the Claimant was not, in any case, entitled to recover even the £23.03 cost of Mrs Kent and Mr Cummings’s time spent dealing with the incident, as the Claimant had 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’.” Mrs Kent and Mr Cummings, “far from being diverted from their usual activities, were in fact actively engaged in them” (see paragraphs 14 and 15 of the judgment of 9 May).


In the Northampton CC case of Debenhams v Gee, determined on 11 May 2012 – that is, case 0012 in the list of court cases on RLP’s website – the ‘contribution’ of £82.50 towards actual ‘staff/management time’ costs claimed by Debenhams (and previously demanded by RLP as part of its £137.50 demand) went unchallenged by the (unrepresented) Defendant, Mr Gee, and as a result was accepted without question by the judge. One can only wonder what would have happened had Debenham’s staff witnesses (and Schedule of Loss) been subjected to the same kind of cross-examination by defence counsel as were Mrs Kent and Mr Cummings.


Diversion of staff time, and significant disruption



As noted above, in his judgment of 9 May, HHJ Harris ruled that the sum claimed for staff time dealing with the incident was not recoverable by the Claimant as the staff involved were not diverted from their usual duties, and there was in any case no significant disruption to the Claimant’s business (the test set out in the Court of Appeal case of Aerospace Publishing Ltd).
There was much discussion on this point over the two-day trial hearing, but a key section of the transcript is pages 24-34 of day two. In this section, the Claimant’s counsel struggled to make his case that Mrs Kent and Mr Cummings were diverted from their normal duties. And it was during this part of the legal submissions that HHJ Harris first expressed his view that Mrs Kent and Mr Cummings “were not diverted from their normal security duties, but were in fact performing their normal security duties”.

Again, in Debenhams v Gee, the assertions by Debenhams that its staff were diverted from their normal duties, and that this caused ‘significant disruption’, went unchallenged by the (unrepresented) defendant, Mr Gee, and as a result were accepted without question by the judge. One can only wonder what would have happened had the judge heard legal submissions by defence counsel on the relevant case law.


The sums claimed for ‘administration costs’ and ‘apportioned security & surveillance costs’



Most of the two-day trial hearing was consumed by witness evidence, cross-examination and legal submissions relating to ‘staff time spent dealing with the incident’, and whether or not this involved both ‘diversion from normal duties’ and ‘significant disruption’. Relatively little time was spent on the two other elements of the total sum of £137.50 sought by the Claimant and previously demanded by RLP: the £24.75 for ‘administration costs’, and the £30.25 for ‘apportioned security & surveillance costs’.


The Claimant did not present any evidence to support the claim for £24.75 of ‘administration costs’. And, under cross-examination by the Defendants’ counsel, the Claimant’s loss prevention manager, David Tennant, conceded both that the Claimant had not provided any indication of how the sum of £24.75 had been arrived at, and that the sum is not just pre-determined but also arbitrary (see pages 34-35 of day one). And, during legal submissions, HHJ Harris expressed his view that such costs “are not attributable” to the Defendants: “it does not seem to me that you can possibly attribute any of these things to [the Defendants]” (see pages 36-37 of day two).


As for the sum of £30.25 for ‘apportioned security & surveillance costs’, the Claimant conceded (on page 21 of day one) that this is an “arbitrary” contribution to an actual cost of “just over £100”, which is calculated by dividing the total annual cost of security measures (some £3.5 million) by the number of alleged shoplifters apprehended each year (some 35,000). During legal submissions on day two, the Claimant’s counsel struggled to make the case for the recoverability of this sum, and HHJ Harris expressed his view that “the tort of the Defendants did not cause the shop to install the CCTV … it was already there” (see pages 38-39 of day two).


In the event, of course, HHJ Harris ruled that the Claimant was not entitled to recover these two sums from the Defendants, stating (in paragraph 16 of his judgment of 9 May):

“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.”
In the Northampton CC case of Debenhams v Gee, the judge appears to have simply missed this rather fundamental point of law. But then he had not heard any legal submissions on behalf of the Defendant.


Other points of interest



During cross-examination on day one, the Claimant’s witness Colin Tennant confirmed that RLP issue some 11,000 civil recovery demands on behalf of the Claimant each year, and that 60-65 per cent of these demands go unpaid (see pages 37-38 of day one). Mr Tennant also confirmed that, of the some 7,000 unpaid demands each year, only “20-30” have ever led to the issuing of a County Court claim. And “only a handful” of those 20-30 court claims were defended – the remainder presumably being settled or resulting in a default judgment only. Clearly, the Claimant has very little experience of litigating unpaid civil recovery demands in front of judges.
Mr Tennant also conceded (on page 36 of day one) that, without sight of the mysterious Matrix by which RLP determines the sums for e.g. staff time that it demands, there is no way of knowing how these sums are arrived at. Earlier (see pages 5-6), HHJ Harris had said: “£82.50 is a very precise figure and I am just wondering how you arrive at it”. No answer was ever forthcoming, but HHJ Harris expressed his surprise that the sum is calculated “not by the Claimant, but by something called RLP” (see page 6).


It is striking that the cross-examination of the two Defendants, Ms B (pages 70-76 on day one) and Ms K (pages 82-86), adds absolutely nothing. All the material facts had already been admitted, and accordingly there was no need for the Defendants to even be in court. But the claimant required the Defendants to be present, for cross-examination.
It is hard not to conclude that this was simply an exercise in intimidation.

[Amethyst]

Re: RLP and the Oxford test case: The truth and the lies

In the interests of balance RLP are claiming that a case held two days later disregards the outcome of this Oxford case, the case of Debenhams v Gee - I disagree entirely - the judgement and transcripts of this case can be read http://legalbeagles.info/civil-recov...2012-judgment/ - so you can make up your own mind.

[leclerc]

Re: RLP and the Oxford test case: The truth and the lies

http://www.bailii.org/cgi-bin/markup...method=boolean


The above is the Aerospace case mentioned in the summary given in the post

[EXC]

Re: RLP and the Oxford test case: The truth and the lies

Farrar's Building Chambers, who provided counsel for the defendants, have published a case summary http://www.farrarsbuilding.co.uk/lat...-9-May-2012-99

[Amethyst]

Re: RLP and the Oxford test case: The truth and the lies

In the interests of balance RLP are claiming that a case held two days later disregards the outcome of this Oxford case, the case of Debenhams v Gee - I disagree entirely - the judgement and transcripts of this case can be read http://legalbeagles.info/civil-recov...2012-judgment/ - so you can make up your own mind.

para C PAGE 14 of the hearing transcript - regarding the oxford case ( so it was brought up, however briefly) http://legalbeagles.info/Debenhams%2...%20hearing.pdf -

MR MUNRO: I have drawn your attention in my skeleton argument to a different decision which is not binding on you by a County Court judge earlier this week and you will see my submissions on that. The learned judge did not deal with the legal submissions that I have made to you in the skeleton argument and indeed did not deal with the submissions that I have expanded to you orally. I do not know if there is anything that I could usefully add to what I said in my skeleton argument in that regard.
Unless I can assist you further, those are my submissions.

[EXC]

Re: RLP and the Oxford test case: The truth and the lies

I have drawn your attention in my skeleton argument to a different decision which is not binding on you by a County Court judge earlier this week and you will see my submissions on that. The learned judge did not deal with the legal submissions that I have made to you in the skeleton argument and indeed did not deal with the submissions that I have expanded to you orally. I do not know if there is anything that I could usefully add to what I said in my skeleton argument in that regard.
Unless I can assist you further, those are my submissions. -

Yes the Oxford decision formed part of the submission but I don't think that the judgment transcript would have been available at that point. I'm not sure how the submissions differed as, according to RLP, the Northampton case comprised ''of the same issues.''

http://www.lossprevention.co.uk/Court%20Cases.aspx

[Celestine]

Re: RLP and the Oxford test case: The truth and the lies

I sat and read the transcripts through thoroughly last week. The strongest impression that they have left on me is, who the hell 'coached' the security staff to give such monstrously inaccurate time accounts.
How can 6hrs plus be reduced under cross examination to just over an hour?
Also, the absence of the 'cost matrix' apparently used by RLP. As the evidence unravelled it became worryingly apparent that this so called cost matrix bore no relation whatsoever to reality.

[bluebottle]

Re: RLP and the Oxford test case: The truth and the lies

I sat and read the transcripts through thoroughly last week. The strongest impression that they have left on me is, who the hell 'coached' the security staff to give such monstrously inaccurate time accounts.
How can 6hrs plus be reduced under cross examination to just over an hour?
Also, the absence of the 'cost matrix' apparently used by RLP. As the evidence unravelled it became worryingly apparent that this so called cost matrix bore no relation whatsoever to reality.

My own view of the evidence given by the security staff is that they were instructed to commit perjury - no other word for it. There now needs to be a formal investigation to identify the individual or individuals responsible for this and appropriate action taken.

A barrister or solicitor, skilled in cross-examination, will get to the truth, no matter what. Simply by picking holes in supposed evidence, they will keep picking until small holes become bloody big holes you can drive a coach and horses through and have plenty of room to have a double decker bus pass on both sides.

[EXC]

Re: RLP and the Oxford test case: The truth and the lies

I don't think that there was any deliberate intention to mislead. Rather, it was a failure on behalf of the claimant and those behind bringing the action to recognise the requirement to accurately quantify the alleged loss claimed for.

[Bill-K]

Re: RLP and the Oxford test case: The truth and the lies

You know what your problem is, EXC ?

You're too kind !!!

[Dougal16T]

Re: RLP and the Oxford test case: The truth and the lies

I don't think that there was any deliberate intention to mislead. Rather, it was a failure on behalf of the claimant and those behind bringing the action to recognise the requirement to accurately quantify the alleged loss claimed for.

Morning all,

I think there was every intention to mislead, simply because RLP cannot afford for the truth to come out.

Consider the extent of the damage that an inquiry into their previous Court cases, not to mention the 'knock-on' effect for the Companies concerned in employing the 'Security' staff :tinysmile_hmm_t2:, .....well, perhaps it could also be worth considering what it says here:

Fraud Act 2006: ..The Act gives a statutory definition of the criminal offence of fraud, defining it in three classes - fraud by false representation, fraud by failing to disclose information, and fraud by abuse of position.

I would personally think that RLP may well be in contravention of this Act. Any thoughts anyone?

As a final thought (who said "thank goodness for that"....?)

Consider also (perhaps) the 'Aid, Abet, Counsel and Procure' legislation.

Best wishes to all

Dougal

[wales01man]

Re: RLP and the Oxford test case: The truth and the lies

I only read first days transcripts i too got the impression than there were some porkies coming out then the defence barristers were able to rip the statements apart as we see all to often people working for these types of companies bend the truth my feeling is it should be vieved as perjury dont think these 2 stroy tellers will be used to provide evidence ever again

[Amethyst]

Re: RLP and the Oxford test case: The truth and the lies

I agree with EXC and walesman.

First is the fact that actually it would appear that the claimant’s best evidence as to a diversion of time comes from Mrs Kent and she says it was an hour or an hour and ten minutes in total. I have already made the point that part of that is costs because part of that is initiating the civil recovery. So it is not even all of that. Actually when one looks at the CCTV and the time when they entered the store to the time when they are at the end of the CCTV footage at seven minutes past, that is a passage of 12 minutes. So it does not appear to be a particularly significant period of time that is actually involved directly in avoiding the tort.

Without quoting all of Mrs Kent's evidence, as it is quite lengthy and back and forth, it appears she wrote down times, after 13 months, as a guestimate how long it took to deal with the seperate bits of dealing with the incident. So as anyone really would do - you think of the list of things you had to do, and guestimate how long each bit would take, then add it all up at the end. You tend to forget that most of the stuff is being done consecutively with other bits, ie. completing the banning form whilst waiting in the holding room. If listing things you might think well I stood in the holding room from when I got there to when the police arrived, say half hour, and the form takes 10 minutes to complete, so that's 40 minutes, ah and I looked at the CCTV which is 10 mins long, so that's another 10 mins.

So I don't think any blame should be on Mrs Kent for her timings. She has listed what she did and how long each thing took - she did put at the end that it was an hour and ten mins overall dealing with the incident.

RLP, I assume, have taken all the timings as separate and listed them as such when trying to justify their claim.

[Guest]

Re: RLP and the Oxford test case: The truth and the lies

HI

Trying to understand what is going on here, it seems to me that one of the following three positions needs to be proven.

Taking as read that the defendant is guiltily of the theft(tort) and that therefore the cause of action is proven or not disputed.


1)Does the tort always trigger an actionable claim for damages, is the shop entitled to reclaim damages in all cases the question is just the sum.

2)Does the shop have the right to sometimes claim damages, if these can be proven to be a significant disruption to its normal business(British Aerospace).

3)Does the shop never have the right to claim damages because the costs are already part of their running costs no matter what the disruption.

I think six months ago RLP were stating the first of these options and now they seem to be saying the second. The courts do seem to be acknowledged that costs can be recovered in some cases, otherwise they would not have bothered with analyzing the breakdown of security costs etc in both cases.

My position as always been that of proposition 3 above, as has this forum(please correct me if I am wrong), I have a feeling we are going to have to accept proposition 2 on the current evidence.

D