Retail Loss Prevention Limited

UPDATE ON COURT CASES

MAY 2012

The two cases added to our snapshot of cases this month make interesting reading.

Both were first instance Small Track cases, which have no binding authority or precedence value. Each case turns on its own merits and were decided upon its own facts.

Of all cases that RLP’s clients have taken through the court system in 13 years, the case in Oxford County Court on 9th May has been the only one lost on all heads of damage with the Claimant awarded nothing.

Two days later, the decision in Oxford was referred to in a trial of another shoplifter in Northampton County Court on 11th May, of the same issues. The Judge in Northampton was also referred to the authoritative case law (Aerospace and Salvadori Court of Appeal cases), and preferring these cases, and the Claimant’s evidence, awarded Judgment in favour of the Claimant, for the £137.50 fixed contribution sought, together with court fees, fixed cost, interest at 8% per annum and witness expenses.

In both cases, the Defendants alleged that the security personnel were engaged to do just what they were paid for, and that there was therefore no loss to the retailer, which could be attributable to their thefts. They all alleged that the CCTV and security equipment was installed as part of the store’s overheads, and cannot be attributable to the shoplifter. They all alleged that their actions, whilst dishonest, caused no significant disruption to the business, and therefore had no basis in law. It was also alleged that the fixed contribution to the losses sought was arbitrary and again, had no basis in law.

In both cases, the same case law was relied upon, which is Court of Appeal case law, which is binding.

In the first case, being referred to as some kind of test case in certain circles (which of course, it was not) the defence on this basis succeeded.

In the second case, two days later, the same facts and case law was relied upon, which succeeded on every head of loss.

Such is the nature of litigation and hence why parties are encouraged to settle the claim without the need for court action and the risks it involves.

Transcripts of the Judgments have been requested and will be available in due course.

Court London Date July 2012
Defendant 32 year old male staff member Ref No. 0013
Brief case details
Theft of cash £50.00. Recovered. Initial claim value £1,701.69. Initially defended and filed AOS, but failed to file a Defence. At disposal hearing damages were assessed and Judgement awarded of £2,344.36 inclusive of costs and interest at the rate of 7.9%.

Original claim £1,701.69 Next Action Awaiting payment/Enforcement
Judgement amount £2,344.36
       
       
Court Northampton Date 11.05.12
Defendant 37 year old male Ref No. 0012
Brief case details
Theft/conversion of fragrance £63. Escaped from store, discarding item, that was subsequently recovered and fit for resale. One security officer dealt with the matter and reported to management. Defendant denied the claim, and sent in pro-forma correspondence taken from a consumer forum. At the trial it was argued that there was no loss to the Claimant as the goods were recovered. It was also argued that the security officer did nothing other than what he was paid for and that the security officer would have been paid, irrespective of whether the Defendant stole the store’s goods or not. It was alleged that he had been dealt with in the Criminal Justice system and it was not fair to have a civil claim against him and that he could not afford to pay the damages sought. It was argued that the security equipment and overheads were already installed for other purposes such as health and safety and it could not therefore be attributable to his theft.

The Judge, applying Aerospace (case law), accepted the extent of the diversion of the security officer’s time dealing with the incident, and the work required thereafter, including the civil recovery notice. He held that this amounted to significant disruption to the Claimant’s business. He accepted the Claimant’s evidence as to the value of that diversion.

The Judge, applying Salvadori (case law), also accepted that the Defendant should be accountable to the Claimant for a proportion of the security and administration costs sought. He accepted that the actual losses exceeded the nominal fixed sum sought and that it was therefore recoverable. The Judge found that whilst the security equipment and staff may well be used in connection with issues such as health and safety, a substantial part of that is because of theft, at a cost to the Claimant, which it would otherwise not have.

Original claim £137.50 Next Action Payment/Enforcement
Judgement amount £278.50
       
       
Court Oxford Date 09.05.12
Defendant 21 and 19 year old females Ref No. 0011
Brief case details
Two Defendants, together with another unidentified female entered a store and stole several items. They caused disturbance upon apprehension outside the store, requiring the assistance of 2 additional security staff from the shopping centre. The third female escaped and was not identified. The two apprehended females were abusive to the security staff. Due to their un-cooperation they were arrested by the Police and were found to have stolen goods from a number of other stores in their possession. They received a Police Caution and Reprimand respectively, upon admission of theft.

The CAB got involved and arranged pro bono defences for the two Defendants. They denied acting jointly for reasons not made known, which was called into question by the Judge. An application for anonymity was made by both Defendants and the Claimant agreed, on the basis that it applied to all parties.

Regrettably the case was not presented well. The Claimant’s witnesses (who are security guards and not experienced in legal proceedings) became confused under the considerable pressure of cross examination by the shoplifters’ counsel. This can happen in any litigation.

The Judge found against the Claimant, as he could not establish that the security staff were diverted from their duties. Whilst the Judge recognised that there were four different activities undertaken by the security personnel, being patrolling the shop floor deterring crime, monitoring the CCTV detecting crime, apprehending and detaining those who commit crime, and dealing with the aftermath, he did not however make the distinction between the former two, for which the security staff are engaged, and the latter two, which is their diversion from the former two activities. The claim was accordingly dismissed. Application for appeal was refused.

The Judge did however express sympathy for the retailer in question in having to deal with situations such as that which the Defendants caused. He found that other losses were recoverable, markedly, commenting that had the shop floor staff dealt with the incident, this may well cause significant disruption to the business.

If this were a binding decision of any kind, it would create a strange anomaly whereby a business which expects its shop floor staff to put themselves in danger dealing with situations such as this one, the cost of such diversion is recoverable, but where a retailer takes the extra step, at huge additional costs, thus protecting the shop floor staff and honest shoppers, the cost is not recoverable.

The Judge further held that goods not recovered could of course be sought, although the goods not recovered from the third woman who escaped, were not referred to in the Judgment.

The Judge finally made some suggestions for retailers to recover their losses such as a contractual car parking type of arrangement, which would not be feasible, or some kind of additional payment where security make an apprehension, which again, those in the business of retail crime are fully aware, is not feasible.

Original claim £137.50 between both Defendants Next Action The retailer will decide whether it wishes to apply higher for leave to appeal. Given the insignificance of the case, an appeal is unlikely.
Judgement amount £0.00
       
       
Court Bow Date April 2012
Defendant 21 year old female staff member Ref No. 0010
Brief case details
Defendant stole cash, £289.62, from Iceland’s till during the course of her employment. Dismissed for gross misconduct. Failed to respond to any of RLP’s correspondence on Iceland’s behalf. Iceland issued claim. Judgment in default and damages assessed at disposal hearing. District Judge accepting case law awarded damages for both the value of the theft, the cost of the staff’s time in dealing with the matter, and administrative costs, £652.60. District Judge felt that given the serious nature of the case involving theft, the whole 2 ½ year interest period at the rate of 8% was appropriate and awarded an additional £139.32. Although the case was of relatively low value and well beneath the Fast Track limit, given the serious nature of the case involving theft, the Court was also minded to award costs, which it further found proportionate and reasonable. Full costs of £1,323.00 ordered as sought. Judgment of £2,114.92 to be paid within 14 days.
Original claim £652.60 Next Action Await payment. Consider enforcement if not paid
Judgement amount £2,114.92
       
       
Court Cardiff Date February 2012
Defendant 27 year old male customer Ref No. 0009
Brief case details
Prolific shoplifter reported by a number of retailers over the years, and with convictions. Never responded to any of RLP’s correspondence Two matters for one retailer issued in Cardiff County Court, and Judgment in Default obtained. Case was not allocated to a Track, and listed for Disposal Hearing. Defendant appeared at Disposal Hearing to challenge quantum, with Court Liaison Officer Damages assessed. Damages awarded together with costs. Total Judgment of £3669.00
Original claim £2,439.00 Next Action Enforcement being considered
Judgement amount £3,669.00
       
       
Court Nottingham Date March 2012
Defendant Two teenage girls customers Ref No. 0008
Brief case details
Theft of large amount of cosmetic items £78. Police involved and Defendants admitted theft and received Fixed Penalty Notices. Upon receiving RLP’s correspondence, the Defendants’ mothers wrote to RLP making all kinds of unfounded allegations and threats about the CAB, the OFT and the Law Commission, which mirrored the false allegations being made by the CAB. Proceedings were issued against both Defendants on a joint and several basis. Upon service, the father applied common sense and realised the impact a CCJ would have on the Defendants and the increase to the costs if court action proceeded further, so an offer was made to settle, which was accepted on a commercial basis.
Original claim £137.50 Next Action Await consent order and payment.
Judgement amount £150.00
       
       
Court Leicester Date January 2012
Defendant 24 year old female Ref No. 0007
Brief case details
Defendant was employed by Claimant and conducted fraudulent refunds to the value of £1864.00 over a 4 month period. Criminal Outcome was a Caution. The Defendant failed to respond to any pre-action correspondence or to engage in pre-action settlement negotiations. A Claim was issued on the County Court and Judgment in Default was obtained, with Damages to be assessed. . Each head of damage was investigated by the Court and damages were awarded for the full value of the fraudulent refunds, the cost of the loss prevention staff’s time, the cost of the diversion of management’s time, administrative costs, Court fees and legal costs. Judgment was therefore entered in the sum of £2,779.57.
Original claim £2,273.94 Next Action Defendant has 28 days from date of Award to pay. If payment not made, enforcement by way of Charging Order is advised.
Judgement amount £2,779.57
       
       
Court Birmingham Date June 2011
Defendant 40 year old female  Ref No. 0006
Brief case details
Defendant was a manager. Appropriated charity money and cash from tills. Denied claim. Case allocated to Small Track, but transferred at Court’s discretion to Fast Track. Defendant refused to engage in mediation. Defence was struck out. Damages awarded of £1,284.44. There are estimated costs of £7,000 which the Defendant is ordered to be paid, to be assessed if not agreed. Claimant is obtaining Charging Order on Defendant’s property
Original claim £1,139.22 Next action Secure Final Charging Order Get costs assessed and charge those to property too if payment not made
Judgement amount £1,284.44 + damages TBA
       
       
Court Wigan Date January 2012
Defendant Male member of management staff and his girlfriend Ref No. 0005
Brief case details
Defendant worked in management. He put his girlfriend on the payroll but she was not employed or engaged by the company, and did not work for the company. They drew over £10,000 in salary, before being discovered. Defence was filed. Defence has been struck out and disposal hearing awaited where damages and costs will be assessed
Original claim £12,942.00 Next action   Disposal hearing
Judgement amount £TBA
       
       
Court Hartlepool Date November 2011
Defendant 24 year old female customer Ref No. 0004
Brief case details
Defendant Cautioned by Police for theft of cosmetic items £20.28 recovered fit for resale. Defendant sought advice from CAB upon receipt of RLP’s correspondence. CAB made bare denial on Defendant’s behalf. CAB refused to engage in pre-action correspondence in breach of Practice Direction for Pre-action Conduct and the Civil Procedure Rules 1998. Claimant left with no option other than to issue proceedings. Claimant made offer of reduced sum of £40 to settle claim prior to the issue of proceedings which was not accepted. Proceedings were issued, incurring additional Court fee and legal costs. After proceedings were issued, the CAB made contact again, advising that the Defendant was a young single mother, and enquired whether the previous offer of £40 could still be accepted. In view of the fact that it was the CAB that put the Defendant in the position of having to bear the additional costs involved in the issue of proceedings, Claimant accepted the offer of £40, with a contribution of £115 to costs and fees. The Claimant however simultaneously invited the CAB to pay the additional £115 costs in view of its advice to the Defendant to ignore the correspondence. The CAB has not responded and the Defendant, an alleged single mother on benefits, is Ordered by the Court to pay £155. The Claimant has agreed to accept payment of £10 per month, but still awaits a response from the CAB as to whether it will pay the costs they incurred, or whether the CAB will leave payment of those costs to the Defendant.
Original claim £137.40 Next action Defendant is going to pay £10 per month A response is awaited from CAB as to whether it will pay the Defendant’s legal costs incurred as a result of its advice to ignore RLP’s correspondence
Judgement amount £155.00
       
       
Court Edmonton Date On Going
Defendant 45 year old female customer Ref No. 0003
Brief case details
Alleged theft of cosmetic item. Admitted upon apprehension in store and pleaded with store not to call the Police. Police not called as Defendant remorseful and it was first incident known of to store. Upon receipt of notification of civil claim, Defendant wrote to store’s Head Office with template letter from “consumer” forum. Letter failed to address the claim. Template letter was irrelevant to claim and thwart with factually and legally incorrect statements. Store passed letter to RLP to respond. Full response given. Defendant then made allegations of unlawful arrest and false imprisonment and refused to engage in any further correspondence. Proceedings therefore issued. No Defence filed. Judgment in Default. Defendant then alleged mistaken identity and that she was not the person apprehended. Case listed for Disposal Hearing. Defendant now settled the claim, with Court fees, interest and legal costs.
Original claim £137.40 Next action   Payment made in full
Judgement amount £274.50
       
       
Court Huddersfield Date December 2011
Defendant 45 year old male customer Ref No. 0002
Brief case details
Above repeat offender in local area. Theft of variety of grocery goods. Whilst telling RLP the Police told him he was innocent, he was convicted at the Magistrates’ Court. Defendant made every attempt to evade service of correspondence and Court papers, pretending he had not received them. Also tried to pretend that he no longer lived at the address. Through our trace services, Defendant was confirmed as still living at the address. Claim proceeded and was allocated to the Fast Track. Judgment was entered with damages to be assessed. Damages were assessed and the Court awarded the Claimant store its damages of the fixed contribution to losses, together with Court fee and legal costs. The Defendant has failed to satisfy the Judgment and enforcement action is now being advised upon
Original claim £137.40 Next action Enforcement
Judgement amount £1,924.46
       
       
Court Huddersfield Date December 2011
Defendant 45 year old male customer Ref No. 0001
Brief case details
Repeat offender in local area. Alleged theft of cheese and bacon. Told the Police he was a Security Consultant seeking to assist the store. There was therefore no criminal prosecution. Defendant made every attempt to evade service of correspondence and Court papers, pretending he had not received them. Also tried to pretend that he no longer lived at the address. Through our trace services, Defendant was confirmed as still living at the address. Claim proceeded and was allocated to the Small Track. Judgment was entered with damages to be assessed. Damages were assessed and the Court awarded the Claimant store its damages of the fixed contribution to losses, together with Court fee. The Defendant has failed to satisfy the Judgment and enforcement action is now being advised upon.
Original claim £87.50 Next Action Enforcement
Judgement amount £155.00