'You bend it, you mend it' - Piper sues Hales

[kev b]

In my limited personal experience of court cases the innocent party has come off worst every time. I will do my utmost to keep the legal profession away from any dispute as matters always seem to escalate as soon as professionals become involved.

Years ago when I was young and naive I thought that going to court meant the truth would come out and justice would prevail,twice I was badly mistaken.

The victor will be the party with the smartest representation, not always the most expensive, I have watched a local solicitor wipe the floor with my expensive,ill prepared barrister in court.

I have also seen someone receive 3 years for murder because the prosecution were badly prepared and lacklustre.

The Piper v Hales case is very sad, it should never have gone to court, but Mr Piper obviously had an axe to grind, whilst Mr Hales legal team did not give their best. I wonder why technical experts did not testify, is it because they were in Mr Pipers thrall, because Mr Hales could not afford them or did Mr Hales lawyers not think it neccessary?

Why was the testimony of Nick Masons mechanic disregarded as he was the only independent witness present?

Edited by kev b on Sunday 20th January 16:12

[Boshly]

Ozzie Osmond said:

10 Pence Short said:

The High Court has had opportunity to hear the evidence in full, I would imagine. If they have made an error or come to a perverse verdict, no doubt the losing party will appeal and the result can be reconsidered. In the absence of hearing all the evidence or seeing an appeal lodged, I struggle to see how or why we could safely surmise that one party or the other has been hard done by?

^^^^ This

And the moral of the story is, don't lend your car to anyone without a short written agreement unless you're prepared to pay in full if it gets crashed or broken.

Even if someone is driving with the benefit of your comprehensive insurance you still need a written agreement to deal with,
1. Who pays the insurance excess if there's an accident.
2. Who pays for any loss of no claims discount if there's an accident.
3. Who pays for any mechanical breakdowns (which aren't insured).

How sad!!

As I've already posted I've let many people drive my cars (considerably cheaper than the 917!!!) with an understanding that bottom line is its my money/car at risk. I gained pleasure from doing so. You now propose that I carry a written agreement to be signed by both parties (with I assume a period allowable for the other party to get their own legal team to confirm the wording of my document is acceptable) a bit of discussion and negotiation in terms, a couple of witnessed signatures and away we go.

I exaggerate of course but the above scenario virtually means nobody (who has heard or read of this case) will ever drive my cars again nor will I ever have the thrill and joy of driving someone else's expensive pride and joy.

As such, if you can't afford it, you'll never drive it. I re-iterate, how bloody sad.

Oh, and by the way, the agreement you advocate still wouldn't necessarily have prevented this case as the dispute was whether there was negligence or mechanical breakdown not who will pay for mechanical breakdown. Back to the (legal) drawing board!

[10 Pence Short]

RYH64E said:

One problem with our legal system, inevitable I suppose, is that it's very expensive! From the figures posted earlier it would appear that the prosecution costs were £63k, the defence costs I'm guessing were somewhat less but still substantial, and loser pays all (plus the original £50k of course).

Can the defendant afford to fund an appeal and is it worth the risk? It's an expensive, high risk game.

I don't see it as a problem. The court fees are not expensive, but the choice of representation may be. It should serve as a lesson that before entering into ventures with others, you agree what will happen in the event of a "what if?". Both parties had opportunity to avoid court and chose not to do so.

Expert's reports, barristers and their supporting lawyers are not cheap and therefore court should be reserved for when you are confident you are going to win and you cannot afford to walk away.

[jonnylayze]

I don't know Mark personally although I've been watching him race and reading his columns and articles for more than 20 years. Compared to many other "hired guns" he always seems to have fewer incidents - bodywork or mechanical - and the central thrust of this case which, I think, is that he showed contempt for the machinery at his disposal, seems very out of character.

As someone who enjoys watching historic cars being used and raced as they were designed to do, I am concerned by the implications for historic motor racing in particular and motoring journalism in general.

The exposure which high value cars receive through articles which feature them undoubtedly increases their value and the value of a 917 to a collector goes well beyond what it might cost to bolt it back together, even if it is almost completely "destroyed" in an accident.

This case makes no sense and I extend my sympathy to Mark Hales

[EDLT]

Steve H said:

agtlaw said:

We are/ were posting at cross purposes. The point I was / am making is that formation of a limited company offers no protection for the defendant if a negligence action is brought against him personally. A negligence action is distinct from a breach of contract action as there doesn't have to be what is called privity of contract.

I can understand from Stacy's report how Piper has established that he can sue MH personally based on his use of personal email etc showing that he was acting on his own part and not as an employee of the company. However, if this is the case, then had he not opened these loopholes the company would presumably have been the only available defendant; there must be plenty of circumstances where an employee's alleged negligence is entirely the problem of the employer.

agtlaw said:

I haven't seen the pleadings in this case (or the judgment - i should have it tomorrow) but I'd expect the action to have been based on both breach of contract and negligence. Totally understandable that the claimant would want to sue MH in a personal capacity. Absolutely no point suing a company that is then dissolved. Company as a 2nd defendant might have been an option and odd this wasn't pursued if an insurance policy was there. There's plainly more to this aspect of the case than hitherto mentioned online.

I agree with earlier comments on this, if Piper chose to sue MH personally despite apparently having the option to sue his company which had adequate insurance cover then the only reasons I can see would be malice and wishing to exact a penalty on to MH or possibly Piper was advised that his case was sufficiently marginal that taking it against a well equipped insurance company carried a high risk of failure.

This thread is getting a bit confusing, but was Hales a freelance writer rather than an employee of the publisher and would that make a difference?

[rubystone]

EDLT said:

This thread is getting a bit confusing, but was Hales a freelance writer rather than an employee of the publisher and would that make a difference?

Yes and yes.

[Boshly]

10 Pence Short said:

I don't see it as a problem. The court fees are not expensive, but the choice of representation may be. It should serve as a lesson that before entering into ventures with others, you agree what will happen in the event of a "what if?"..

But this wasn't a "what if" it was a "what happened". A what if depends on the outcome being obvious.

This is why I keep harping on about some sort of sweeping generalisation like the wealthier owner (generally the case) should always be the responsible party, maybe with some hoped for contributions depending on circumstances but a bottom line expectation of liability. I do accept that commercial agreements may sway things but generally the owner also benefits in some way from the publicity.

[10 Pence Short]

anonymous said:

[redacted]

The court would be reliant on technical reports provided by experts, I would imagine. It may that each side instructed an expert with an opposing view, or even that there was no issue between the parties on the technical merits.

In any sense, the High Court and beyond are not renowned for making a number of perverse or erroneous judgements sufficient to call their quality into question- quite the opposite. England's courts are the jurisdiction of choice for many, many commercial agreements between non-English companies simply because of our court's reputation as being the best in the World.

[Steve H]

EDLT said:

Steve H said:

agtlaw said:

We are/ were posting at cross purposes. The point I was / am making is that formation of a limited company offers no protection for the defendant if a negligence action is brought against him personally. A negligence action is distinct from a breach of contract action as there doesn't have to be what is called privity of contract.

I can understand from Stacy's report how Piper has established that he can sue MH personally based on his use of personal email etc showing that he was acting on his own part and not as an employee of the company. However, if this is the case, then had he not opened these loopholes the company would presumably have been the only available defendant; there must be plenty of circumstances where an employee's alleged negligence is entirely the problem of the employer.

agtlaw said:

I haven't seen the pleadings in this case (or the judgment - i should have it tomorrow) but I'd expect the action to have been based on both breach of contract and negligence. Totally understandable that the claimant would want to sue MH in a personal capacity. Absolutely no point suing a company that is then dissolved. Company as a 2nd defendant might have been an option and odd this wasn't pursued if an insurance policy was there. There's plainly more to this aspect of the case than hitherto mentioned online.

I agree with earlier comments on this, if Piper chose to sue MH personally despite apparently having the option to sue his company which had adequate insurance cover then the only reasons I can see would be malice and wishing to exact a penalty on to MH or possibly Piper was advised that his case was sufficiently marginal that taking it against a well equipped insurance company carried a high risk of failure.

This thread is getting a bit confusing, but was Hales a freelance writer rather than an employee of the publisher and would that make a difference?

My understanding is that Hales was contracted to the magazine who appear to have made an early offer that was refused but then were no longer involved. The company I am referring to above is the one that Hales owns and is an employee of, this company apparently does have liability insurance but it seems Piper may have gone to some effort to establish that he could sue Hales personally.

[coppice]

A lot of understandable emotive stuff on this thread-it seems to me that both parties are at fault for not actually clarifying and agreeing who was responsible for what foreseeable risks and insuring accordingly- or bearing the risk themselves.

[heebeegeetee]

anonymous said:

[redacted]

I don't disagree. I just think that lending a car to a friend is one thing, asking someone to drive your car at a prestigious meeting is another, and being asked for the use of your car for a commercial purpose is another thing altogether, even if the request comes from a friend.

[agtlaw]

10 Pence Short said:

The court would be reliant on technical reports provided by experts, I would imagine. It may that each side instructed an expert with an opposing view, or even that there was no issue between the parties on the technical merits.

It sounds like credibility of the witnesses (including the parties) was the real issue, rather than technical matters. in my experience, judges don't tend to like experts. btw, the trial judge was a mere circuit judge sitting (alone) as a High Court judge.

[10 Pence Short]

agtlaw said:

It sounds like credibility of the witnesses (including the parties) was the real issue, rather than technical matters. in my experience, judges don't tend to like experts. btw, the trial judge was a mere circuit judge sitting (alone) as a High Court judge.

No doubt you'll find out once the judgement is received, as to whether the cause of the over-rev was in dispute or even relevant. If it was purely down to witness credibility, then all the more importance of putting in place written agreements where events such as these might take place.

If the judgement is ropey, hopefully Hales will find a lawyer willing to take the risk of litigation in order to appeal. Whether there is the appetite, money or trust in its absence to do so is anyone's guess.

[Blackpuddin]

The one thing that seems quite clear from this mess is that there's a big commercial disconnect between risk and reward on this type of feature. Journalists' fees are small, not just in relation to the risks involved, but also in relation to the commercial gain and longer-term kudos that publishers make from being able to put key stories like 'we drive a 917' on their contents pages and on their websites. And the disconnect is growing too, because fees for creative people have been held down by the convenient excuse of recession for the last several years.
The publishers seem to have detached themselves quite neatly from this one, but if this Piper judgement isn't overturned, they and others like them will need to take a long hard look at these features in future to ascertain whether they're financially viable. I don't imagine for a millisecond that professional creatives like Mark Hales will undertake similar commissions in future without full and unequivocal backing from their publishers – who up to now have been perhaps rather too inclined to exploit the good will of such established and credible contributors.
It's a win-win situation for owners of notable cars like the 917 as values inevitably rise as a result of media mythologising. For a certain coterie of cars, a grouping which would definitely include the 917, criticism is better than praise in terms of adding to the legend (and the value). It's interesting to hypothesise on the likely effects on values if they're removed from the public gaze altogether, should they be deemed too expensive to be taken out of the garage and exposed to risk.

[fatboy69]

How do other journalists cover themselves in case something goes tits up?

Im thinking of when Mr Harris was let loose in the Rothmans 956 a few months ago. Did Porsche simply say 'drive & If it breaks st happens' or did they say 'drive it, bend it or break it & you pay?'

[Blackpuddin]

fatboy69 said:

How do other journalists cover themselves in case something goes tits up?

Im thinking of when Mr Harris was let loose in the Rothmans 956 a few months ago. Did Porsche simply say 'drive & If it breaks st happens' or did they say 'drive it, bend it or break it & you pay?'

Manufacturers would always cover it unless gross negligence or abuse was evident, obviously. The benefit they receive from loaning cars to journalists is hard to quantify but clearly it's a net gain for them in publicity terms even if a car fails or is destroyed – both relatively unusual occurrences anyway with new vehicles that are designed for the road with lots of safety features and safeguards built in.
Private owners loaning old, unsafeguarded racing machinery is about as different from that as you can get on just about every level.

Edited by Blackpuddin on Sunday 20th January 17:32

[fatboy69]

Was just wondering whether Porsche, or any other manufacturer, would take it on the chin or whether they would hold the driver personally responsible for any damage.

Still think its a bit out of order from Mr Piper to do what he did. Seems as though his intention was to destroy Mark Hales both personally & professionally.

[Alfanatic]

I have nothing to add except my deepest sympathy. I have been a constant and avid reader if Mark's articles since childhood and I did read the 917/512 test as well. It distresses me to hear that the production of this article has put Mark's livelihood at such risk, and I do hope that, should Mark's version of events be accurate, he manages to fight through to a more appropriate court ruling. Even if Piper is in the right, It all sounds a bit like the Shylock approach and I do hope he doesn't sink a man in his quest for compensation. People interests should come before business interests, IMO.

[RYH64E]

10 Pence Short said:

RYH64E said:

One problem with our legal system, inevitable I suppose, is that it's very expensive! From the figures posted earlier it would appear that the prosecution costs were £63k, the defence costs I'm guessing were somewhat less but still substantial, and loser pays all (plus the original £50k of course).

Can the defendant afford to fund an appeal and is it worth the risk? It's an expensive, high risk game.

I don't see it as a problem. The court fees are not expensive, but the choice of representation may be. It should serve as a lesson that before entering into ventures with others, you agree what will happen in the event of a "what if?". Both parties had opportunity to avoid court and chose not to do so.

Expert's reports, barristers and their supporting lawyers are not cheap and therefore court should be reserved for when you are confident you are going to win and you cannot afford to walk away.

It's a problem when you have two people of disparate means, one of whom can easily afford the costs and the other can't.

As the saying goes, 'This is a court of law, young man, not a court of justice', it costs a lot of money to even get an informed opinion as to whether you have a viable case, as opposed to an outraged sense of injustice.

[EDLT]

Porsche probably get proper contracts signed beforehand.