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Basis For Claim

Basis For Claim

CRIMINAL V CIVIL

Criminal and civil actions are separate to each other. Civil action can be taken regardless of whether the Police were or were not involved. If the Police or Criminal Courts are taking no further action a civil claim can still be instigated applying civil law principles.

In criminal proceedings there is guilt and innocence. Guilt needs to be admitted or proved, “beyond all reasonable doubt.” The level of proof is high as a person can go to jail as a result. In civil proceedings there is no guilt or innocence, it is a question of whether liability (responsibility) can be established and a case has to be proved, “on the balance of probability,” so the incident is more likely than not to have happened. Once liability is established, costs and losses are taken into consideration in order to compensate “the victim.”

Criminal proceedings are brought by the Crown, to “convict, punish and rehabilitate the offender.” Depending upon the outcome you may have a criminal record. Any monies from, fines, surcharges, penalties go to the crown. Civil proceedings are brought by the victim, (the business) who has sustained the losses. The purpose of civil action is to “compensate the victim of the incident,” to put them back in the position they would have been in had the incident not taken place. At the conclusion of the civil claim, you will not have a criminal record.

Generally criminal action takes priority over civil action. A civil claim is not a debt or a fine, it is a claim for compensation arising from an individual’s wrongful actions. In legal terms it is a “Claim for Damages.”

WHY IS CIVIL ACTION TAKEN

The cost of security staff and other loss prevention measures is a significant overhead cost to our clients businesses. If there were no incidents of theft, fraud or other wrongful actions, there would be no need for loss prevention measures. Businesses reasonably take the view that it is fair and equitable for a fixed proportion of these costs to be passed on to those who steal, defraud, or cause other loss. This reduces the costs which then have to be passed on to customers in general. If businesses had not invested heavily in security and other loss prevention measures wrongdoers would be successful in their attempts to remove goods without paying for them.

HEADS OF CLAIM

The law allows a business to recover the costs of its loss prevention departments where they are engaged to detect the wrongdoing of others; making no distinction whether personnel are employed, or third party. The law also provides for a business to recover the costs of other staff when they are diverted from their profit making duties when dealing with the wrongdoing of others. A loss of profit does not need to be calculated. A business may recover at least the cost of the diverted staff’s employment. Business spends millions of pounds every year on security equipment, CCTV installation and maintenance costs. The law allows for a proportion of these costs to be recovered from those who commit wrongdoing.
TIME - It is established at common law that when a security guard is investigating, apprehending and dealing with a Defendant, he is taken away from the shop floor, where he is employed as a deterrent to shoplifters. His time in dealing with a Defendant is recoverable. Where management, administrative staff and other personnel are diverted from their duties in managing the operation of the store, when dealing with a Defendant, their costs are also recoverable. A Claimant may recover the whole cost of its personnel including NI and pension contributions and any other staff benefits paid, not just their hourly rate.
ADMINISTRATION – A contribution towards administrative costs, such as paperwork, photocopying, telephone calls and similar
SECURITY - A contribution towards security measures and overheads
GOODS/CASH - if not recovered or fit for re-sale due to damage or health and safety reasons. Where goods are damaged but may still be resold, the difference between the retail price and the reduced price will be claimed.

LEGAL BASIS

It is a long established principle in common law (Judgments handed down by the Courts over hundreds of years) and reinforced by Parliament by the enactment of the Torts (Interference with Goods) Act 1977. Both common law and the Act provide for a wronged party to recover damages where there has been a conversion of goods, a trespass to goods, or negligence resulting in damage or loss.
England/Wales - The claim is brought in the law of tort. A tort is a civil wrongdoing. The relevant torts are conversion and trespass (or fraud in the case of refund fraud or price swapping). Trespass and Conversion are actionable pursuant to the Torts (Interference with Goods) Act 1977. Where a tort has been committed, a business is entitled to recover its losses.
Scotland/ROI - If you are in Scotland, the cause of action lies in Delict and Spuilzie. There are torts of trespass, conversion and fraud in ROI. The Torts (Interference with Goods) Act 1977 is not however applicable in ROI. References to the DPA include the Data Protection Act 1988 & 2003 in ROI. Some Claimants may issue their Claims in a County Court in England and Wales and some may issue it in the Sheriff’s Court in Scotland or the County Court in ROI. This will depend upon the question of jurisdiction.

CASE LAW

In seeking to recover the cost of time and money spent by our clients various cases are relied upon: British Motor Trade Association vs. Salvadori [1949] CH 556, as approved and extended by the more recent decision of Mrs Justice Gloster, DBE in R & V Versicherung AG vs. Risk Insurance and Re-Insurance Solutions SA and others [2006] EWHC 42 (Comm). These cases have been further upheld, the most notably being Aerospace Publishing v Thames Water Authorities 2007 EWCA Civ 3.

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