Guide to civil recovery
Shoplifting, or stealing from your employer, is of course theft, and that is a criminal offence. But they are also both a civil wrong, or what is known in civil law as a 'tort'. Under civil law, a party can use the civil courts to try and recover - as damages - any losses arising directly from the commission of a tort.
So, in the case of shoplifting or employee theft, a retailer could use the civil courts to try and recover both the value of any goods or cash stolen (where not recovered intact), and any 'consequential losses' that can be shown to be directly attributable to that particular incident of shoplifting or employee theft. Such legal action could take the form of a letter or letters seeking payment of a sum as compensation, followed by a court claim if the sum claimed is not paid.
In any one case, the retailer would need to evidence (i.e. prove) the amount of losses suffered, and prove that these claimed losses were directly caused by the defendant's shoplifting/theft. So, pre-determined, fixed sums for 'staff and management time', and 'apportioned security and surveillance costs', would not be recoverable in law.
In practice, most letters sent by civil recovery agents on behalf of retailers demand pre-set, fixed sums as compensation. On 12 April, the Law Commission published a consultation paper - entitled Reforming Consumer Redres for Misleading and Aggressive Practices - in which it stated that such fixed sum demands "have no legal basis". The Commission further stated that:
"If the theft caused significant disruption to the retailer's business, then the law allows the store to claim for the staff time diverted to dealing with the effects of the disruption. However, the [retailer] would need to prove that the disruption was significant, and that staff time as actually diverted. The law does not generally allow fixed sum penalties. Nor does it allow [retailers] to apportion the overheads incurred for security and surveillance to individual shoplifters."
Retailers are able to demand damages, and take civil action regardless as to whether or not the police have been involved in investigating the alleged incident of shoplifting. A retailer can make a claim for damages under civil law, as well as initiating criminal proceedings.
If you get a letter demanding payment for alleged losses, you should take advice. You could contact your local Citizens Advice Bureau (www.citizensadvice.org.uk, 08444 111 444), or contact a solicitor. The Law Society website has a searchable database of solicitors in your area (www.lawsociety.org.uk, 020 7242 1222). Obviously there may well be costs associated with instructing a solicitor to act on your behalf.
