Interim care order - assessment - court's power to make directions - child's residence
In re B (Interim care order: directions): CA (Lords Justice Thorpe and Buxton): 14 January 2002
The parents had six children, all of whom were taken into care. During the mother's pregnancy with her seventh child, the local authority decided there was no possibility of the children returning to their parents, and decided to separate mother and child.
After the birth, the local authority applied for an interim care order, seeking foster care for the baby. The parents and children's guardian wanted a placement at a mother and baby unit while the assessment took place for the final order. Feeling constrained to make the order sought by the authority, the judge made an interim care order placing the baby in foster care. The parents appealed.
Peter Jackson QC and Judith Butler (instructed by Barnes Marsland, Margate) for the parents; Andrew McFarlane QC and John Tughan (instructed by Childlaw Solicitors, Cambridge, for the acting head of legal services, Newham London Borough Council); Jane Hoyal (instructed by McMillen Hamilton McCarthy) for the children's guardian.
Held, that the function of an order under section 38(6) of the Children Act 1989 in interim care proceedings was to inform the court in any way it thought necessary to decide whether or not to make a final care order; that the court had a broad, generous power of determination in deciding what was appropriate for the child's assessment in the interim period; that a direction for residence at a mother and baby unit was within the court's jurisdiction under section 38(6) and since it was better for all the professionals making an independent assessment, it was appropriate within section 38(6) to direct a residential placement.
Order for costs - multi-party actions - costs sharing -
issue arising of liability for common costs
Sayers and Others v Merck Smith Kline Beecham Plc and Others; X,Y,Z and Others v Schering Health Care and Others; Afrika and Others v Cape Plc; CA (Lords Justice Mummery, Buxton and Longmore): 21 December 2001
After interlocutory orders for costs in three separate multi-party actions in which it had been ordered, among other things, that a discontinuing claimant was unable to recover common costs but continued to have a potential liability for the common costs of the defendants, the claimants appealed.
Lord Brennan QC and Robin Oppenheim (instructed by Freeth Cartwright; Houghton & Co; Leigh Day & Co) for the applicants, Sayers and others; X,Y,Z and others; and Afrika and others. Andrew Prynne QC, Charles Gibson QC and Prashat Popat (instructed by Lovells) for the first three defendants in Sayers, Smith Kline Beecham Plc, Smith Kline & French Laboratories Ltd and Merck and Co Inc. George Leggatt QC (instructed by CMS Cameron McKenna) for the fourth defendant in Sayers, Aventis Pasteur MSD Ltd. Michael Spencer QC and Jonathan Waite (instructed by CMS Cameron McKenna) for the defendants in XYZ, Schering Health Care Ltd Organon Laboratories Ltd and John Wyeth & Brother Ltd. Charles Gibson QC for Cape Plc; Justin Fenwick QC, intervening, (instructed by Reynolds Porter Chamberlain) for various interested NHS trusts and health authorities.
Held, allowing the appeals in part, that there might be many different reasons why claimants might decide to leave the group once the action had started, but to have a prima facie rule that any discontinuing claimant should have an inability, which had crystallised, to recover common costs and a potential liability for the common costs of defendants at the end of a quarter in which he discontinued, was too blunt an instrument and was unnecessarily favourable to defendants, when it was as yet unknown whether the claimants as a whole were to be successful in the common issues which were to be tried; that it was not merely more sensible but also more consonant with justice that both the recoverability of common costs and the liability (if any) of discontinuing claimants for costs should be determined at the same time as orders for common costs were made in respect of those common issues, since the court then had a full picture and could make whatever order was just in all the circumstances.
Expert evidence - expert's 'independent opinion' - not admissible against wishes of defendant by whom instructed
R v Davies: CA (Lord Justice May, Mr Justice Goldring and Mr Justice Gross): 23 January 2002
In a Crown Court trial for murder, the defendant declined to call one of three expert psychiatrists to speak to his defence of diminished responsibility. The Crown successfully applied for the witness to be permitted to give her 'independent opinion' in evidence. The judge, in ruling the evidence admissible, found that the expert's opinion did not, in contrast with the report itself, derive from a relationship of lawyer to client but that of doctor to patient. The defendant was convicted and appealed.
John Saunders QC and Mark Wall (assigned by the Registrar of Criminal Appeals) for the appellant; Anthony Wheeler Palmer QC (instructed by the Crown Prosecution Service, Warwickshire) for the Crown.
Held, in a reserved judgment allowing the appeal and substituting a verdict of manslaughter by reason of diminished responsibility, that although there was no property in a witness, the evidence was obtained at the request of solicitors to a party to litigation in circumstances to which section 10(1) of the Police and Criminal Evidence Act 1984 applied; that, being based on privileged information such that the opinion could not be divorced from that privileged information, the opinion was itself privileged; that the defendant was entitled to protection from inadvertently incriminating himself since, if a defendant agreed to be interviewed by a doctor instructed by the Crown, he would have the opportunity of being advised and knowing that what he said to the doctor might be used in evidence at his trial, and if he was interviewed by a doctor at the instigation of his own lawyers for the purpose of his defence he was entitled to assume that what he said had the same status as his communications with his own lawyers; and that, accordingly, the evidence should have been excluded.
Extradition - fugitive acquitted in requesting state - risk of conviction on appeal - order for return unjust
Oncel v Governor of Brixton Prison and Another: DC (Lord Chief Justice Woolf and Mr Justice Ouseley): 19 December 2001
The applicant was tried and acquitted of extradition offences in Turkey and left Turkey knowing that an appeal was pending which could result in his conviction on a retrial. He was committed to prison by the Metropolitan Stipendiary Magistrate pursuant to a request for his extradition. He applied for habeas corpus.
John McGuinness QC (instructed by Attridge Solicitors) for the applicant; John Hardy (instructed by Crown Prosecution Service) for the government of Turkey.
Held, allowing the application, that the accused had not been placed in double jeopardy because he remained in jeopardy despite his acquittal and could not therefore rely on section 6(3) of the Extradition Act 1989 which prevented an accused's return or committal where, if charged with the offence in the UK, he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction; that there had been only one prosecution process which had not reached finality and so a plea of autrefois convict was unavailable; but that in determining whether by virtue of section 11(3)(b) of the 1989 Act it was unjust or oppressive to return the applicant because of the passage of time since the alleged offences, having regard to all the circumstances, the court had to consider the fact that when the applicant left Turkey his acquittal had not been set aside and the general approach of the English courts to regard it as undesirable for a defendant to be tried twice for the same offence; and that , in the circumstances, it would be unjust and oppressive to return him.
Sentencing - mother pleading guilty to dishonesty offence - of previous good character and having young children - custodial sentence deemed inappropriate
R v Mills: CA (Lord CHief Justice Woolf, Mr Justice Mitchell and Mr Justice Keith): 14 January 2001
The offender, a mother with young children who was of previous positive good character, pleaded guilty to two offences of obtaining services, namely credit from credit companies, by deception for which she was sentenced by the Crown Court concurrently to two terms of eight months' imprisonment. She had given false details as to her employment but made some payments before accruing debts of approximately 15,000 in an attempt to provide a home for her children.
John Dixon (assigned by the Registrar of Criminal Appeals) for the defendant; the respondent
did not appear and was not represented.
Held, allowing the appeal, that the court should have considered that although one reason for a custodial sentence was to give an offender the opportunity to discover what a prison sentence involved, the ability of the prison service to achieve anything of benefit in a short period was limited; that where an offender was the sole supporter of young children, the court had to consider the consequences to the children of their mother being sent to prison; that since 1993 there had been a remarkable and undesirable increase in the female prison population and short sentences were difficult for the prison service to accommodate, as was imprisoning mothers close to their homes; that in a borderline case which did not involve violence or which had financial consequences for a commercial concern, the court had to take into account those factors; that where an offender was of previous positive good character, the offences were out of character with her normal behaviour and she was unlikely to re-offend, the court should avoid sending her to prison; and that, accordingly, the sentence would be quashed and replaced with a six-month community rehabilitation order.
Confiscation order - statutory assumptions - compatible with convention rights
R v Benjafield; R v Rezvi: HL (Lord Slynn of Hadley, Lord Browne-Wilkinson, Lord Steyn, Lord Hope of Craighead and Lord Hutton): 24 January 2002
The defendant, R, pleaded guilty to two counts, each charging theft of 5,000 in 1999, in an indictment containing 14 counts alleging theft and deception between 1997 and 1999. In April 2002, the judge, applying the statutory assumptions in section 72AA of the Criminal Justice Act 1988 made a confiscation order under part VI of that Act in the amount of R's realisable assets, 214,839.
The defendant B pleaded guilty to two counts of conspiracy to supply drugs between May and July 1997. In July 1999, the judge, applying the assumptions in section 4(3) of the Drug Trafficking Act 1994, made a confiscation order under section 2 in the amount of B's proceeds of trafficking, 327,971. The Court of Appeal (Criminal Division) (see  Gazette, 22 March, 41)  3 WLR 75 dismissed the defendants' appeals, rejecting their contention that the statutory assumptions were incompatible with the right to a fair trial and the presumption of innocence in article 6(1)(2) of the European Convention on Human Rights (schedule1 to the Human Rights Act 1988). The defendants appealed.
Tim Owen QC and Danny Friedman (instructed by Magrath & Co) for R; Charles Miskin QC and Danny Friedman (instructed by Stewarts, Stowmarket) for B; David Perry, Kennedy Talbot and Duncan Atkinson (instructed by Crown Prosecution Service, headquarters) for the Crown.
Held, dismissing the appeals, that, the defendants' pleas of guilty, sentences and the making of the confiscation orders having preceded the coming into force of the 1998 Act on 2 October 2000, their convention rights were not engaged; that, in any event, confiscation proceedings did not involve a fresh criminal charge but were part of the sentencing process and the defendants had not been 'charged with a criminal offence' within article 6(2) in respect of them; and that the statutory assumptions were not disproportionate to the legitimate aim in the public interest of confiscating the proceeds of crime so as to be incompatible with the defendants' convention rights. (WLR)
Unfair dismissal - medical practitioner - surgeon deliberately misleading patient as to problems during operation - surgeon dismissed following internal disciplinary and appeal proceedings - professional not personal misconduct
Skidmore v Dartford and Gravesham NHS Trust: CA (Lords Justice Aldous and Keene and Sir Christopher Slade): 16 January 2002
A charge of gross personal misconduct was made against a surgeon, alleging that he had sought deliberately to mislead a patient and her family, the Community Health Council and the NHS trust's chief executive.
Following an internal hearing, the chief executive concluded that the surgeon had falsely told the patient and her husband that two units of blood had been transfused when eight units had been transfused; and that he had stated that a piece of equipment was faulty and had been returned to the manufacturer for inspection, when that was clearly not the case. She decided that he should be dismissed with immediate effect. The surgeon appealed, contending that the case should have been dealt with under the HC90-(9) procedure, for professional misconduct. An appeal panel of the trust board, an employment tribunal and the Employment Appeal Tribunal all dismissed his appeals. The surgeon appealed to the Court of Appeal.
Timothy Barnes QC (instructed by Le Brasseur J Tickle) for the surgeon; Michael Douglas QC (instructed by Brachers) for the NHS Trust.
Held, allowing the appeal, that under paragraph 3 of the Department of Health Circular 90(9) 'personal conduct' was defined as 'performance or behaviour... due to factors other than those associated with the exercise of medical... skills' and 'professional conduct' was defined as 'performance or behaviour... arising from the exercise of medical... skills'; that first, the surgeon was lying about the performance by him during an operation and the operation was not merely the occasion for misconduct but was the subject matter of the lie, secondly, it was part of his professional duty to respond to complaints, and thirdly, the allegations raised issues which needed medical expertise for their determination; and that, accordingly, the case would be remitted to an employment tribunal to reconsider his complaint of unfair dismissal in the light of the incorrect procedure having been used.
Unfair dismissal claimant allowed to appeal on specific point of law only - claimant not entitled to raise further issues at full hearing - tribunal assessing racial discrimination claim not required to express findings on every piece of circumstantial evidence
Miriki v General Council of the Bar and another: CA (Lords Justices Peter Gibson and Arden and Mr Justice Morland): 21 December 2001
The claimant brought a complaint of unfair dismissal, unfair
selection for redundancy, racial discrimination and wrongful dismissal against her former employer and its head of training (the employer parties). An employment tribunal dismissed her claim. She sought to appeal and at a preliminary hearing the Employment Appeal Tribunal narrowed the grounds of appeal on unfair dismissal to one point of law, and in relation to her racial discrimination claim allowed her to appeal in the terms of further amendments to her notice of appeal. The appeal tribunal allowed her appeal. The employer parties appealed on the basis that the appeal tribunal had gone outside the scope of the appeal for which leave had been given.
Tess Gill (instructed by the General Council of the Bar) for the employer parties; Martin Westgate (instructed by Deighton Guedella) for the claimant.
Held, allowing the appeal, that by virtue of practice direction (EAT: procedure)  ICR 422, the appeal tribunal could limit the grounds of appeal to those raising reasonably arguable points of law, and it would not normally permit departure from those points on which an appellant had been permitted to proceed to a full hearing; that in employment cases it was important that complainants should put their whole case before the employment tribunal as the tribunal of fact and, if they disputed that tribunal's decision, to identify the specific grounds on which they were appealing; that it was wrong to seek to widen the case before the appeal tribunal beyond that which had been allowed to go to a full hearing, still more to widen the case before the Court of Appeal; and that, furthermore, where racial discrimination was alleged, the tribunal was not obliged to make express findings on every piece of circumstantial evidence, however peripheral, merely because the applicant chose to make it the subject of complaint.
Home Office accepting claimant married to British citizen - Department for Work and Pensions finding marriage invalid and refusing widow's pension - no issue estoppel or legitimate expectation that Home Office decision to be followed
R (Nahar) v Secretary of State for Work and Pensions: QBD (Mr Justice Munby): 21 December 2001
Home Office adjudicators allowed the claimant entry to the UK after accepting a Bengali marriage deed as valid and proof that she married K, a now deceased British citizen.
The Department of Work and Pensions refused the claimant's application for a widow's pension on the ground that the deed was a forgery and the marriage invalid.
The claimant applied for judicial review on the ground that the Secretary of State for Work and Pensions was bound by the Home Offices' earlier findings of validity.
Roger Andre (instructed by Farringdons) for the claimant; Tim Ward (instructed by Solicitor, Department of Work and Pensions) for the defendant.
Held, dismissing the application, that since there was no sufficient degree of identity of parties or sufficient privity of interest as between different emanations of the Crown, ministers of the Crown or branches of the government, the Secretary of State for Work and Pensions was not and could not be a party to the immigration proceedings, if estoppel did arise there might be substantial prejudice to administration of the social security system, and Parliament conferred statutory powers on a minister in his own name which in law were his alone, although he was acting as a minister of and on behalf of the Crown, no issue estoppel could arise; that no legitimate expectation arose for similar reasons; and that, although the defendant was entitled to take into account the adjudicators' decision, it was neither empowered nor obliged to delegate its fact-finding functions to anyone else.
Application for pitch allocation on caravan site - council refusing application because applicant already in occupation as trespasser - status as trespasser relevant but not conclusive
R (Piggott) v Bedfordshire County Council: QBD (Mr Justice Burton): 17 January 2002
The council rejected an application by the claimant, a gypsy, for the allocation of a pitch in a caravan site run by the council, on the basis that prior to making her application she had entered the site without authorisation and sited a caravan without permission. The claimant sought judicial review of that decision on the ground that the council had been wrong to treat her status as an unlawful occupant as a conclusive reason to find her application to be invalid.
Stephen Simblet (instructed by the Community Law Partnership, Birmingham) for the claimant; Jonathan Holl-Allen (instructed by the Head of Legal Services, Bedfordshire County Council, Bedford) for the council.
Held, granting judicial review, that the council's decision to reject the claimant's application because she was a trespasser could not have been the right course; that the correct approach would have been for the council to weigh up the needs of the claimant with the needs of the community in general and the needs of other potential occupants who had behaved in an orderly way; that, while the improper behaviour of the claimant might have justified giving her a lesser priority, it could not in itself have been conclusive; and that accordingly, the decision would be quashed and the matter remitted to the council for full reconsideration.
LANDLORD AND TENANT
Council landlord's obligation to keep structure and exterior of house in repair - condensation causing damage to interior - council not responsible for design defect which did not damage structure
Lee v Leeds City Council; Ratcliffe and Others v Sandwell Metropolitan Borough Council: CA (Lords Justices Chadwick and Tuckey and Sir Murray Stuart-Smith): 21 January 2002
Council tenants experienced condensation, mildew and mould in their houses because of a design defect.
The councils denied responsibility since the defects were not caused by the structure and exterior of the property being out of repair.
The tenants unsuccessfully sought orders requiring the council to remedy the defects. They appealed.
Kim Lewison QC and Stephen Knafler (instructed by Ward Dewhurst, Birmingham) for the tenants; Andrew Arden QC, Christopher Baker and Christopher Dodd (instructed by chief legal officer, Leeds City Council, Leeds) for Leeds; Andrew Arden QC and Christopher Baker (instructed by chief executive, Sandwell Metropolitan Borough Council, Oldbury) for Sandwell.
Held, dismissing the appeals, that if landlords were to be obliged to ensure that premises let were fit for human habitation Parliament had to say so; that section 8 of the Landlord and Tenant Act 1985 defined the circumstances in which that obligation should be imposed, and so Parliament could not have overlooked the possibility that there could be cases where premises unfit for human habitation were let by a local authority for use by the tenant as his home; that Parliament when enacting section 4 of the Defective Premises Act 1972 had chosen to link the duty of care thereby imposed to the landlord's failure to carry out an obligation 'for the maintenance or repair' of premises rather than a failure to remedy defects in any more general sense, and that was the framework within which the statutory hypothesis in section 4 had to operate; that the obligation to 'repair' bore its usual meaning in the law of landlord and tenant and did not arise unless the object in respect of which it was imposed was out of repair; and that, accordingly, the councils were not liable. (WLR)
Solicitor's undertaking - solicitors notifying claimant of variation in undertaking - solicitor not entitled to avoid liability on undertaking
Hole & Pugsley v Sumption: ChD (Mr Justice Hart): 5 December 2001
The defendant sought the summary enforcement of an undertaking given by the claimant, a firm of solicitors acting for the defendant's husband, that a payment of 275,000, out of the proceeds of sale of a property, would be made to a bank in order to discharge part of a loan of about 600,000 made to the defendant's husband by way of a second mortgage on the property and that any excess would be paid from the husband's share of the proceeds.
It was agreed that after various deductions the balance of 800,000 would be divided equally between the defendant and her husband. After the property had been sold, the claimant wrote to the defendant's solicitors, stating that there had been 'a variation in my firm's undertaking' as the bank now sought slightly more than
1 million, leaving a significant shortfall in the balance. Seeking to recover her share of the 800,000 balance as allegedly agreed, the defendant claimed that the undertaking was to the effect that no more than 275,000 would be paid out to the bank.
The claimant contended that the giver of a solicitor's undertaking was entitled to escape liability under it, at the earliest opportunity, he informed the recipient of any change of circumstances affecting the undertaking.
Simon Berry QC (instructed by DLA) for the claimant; Anthony Mann QC (instructed by Burges Salmon, Bristol) for the defendant.
Held, granting the relief sought, that Citadel Management Inc v Equal Ltd  1 FLR 21 had not elevated the 'change of circumstances' proposition to the status of a general principle; that to hold otherwise would mean that every solicitor's undertaking would have to be read subject to an implied term that it would only hold good so long as circumstances remained the same and the recipient had not been advised to the contrary; that such a term was far from being either necessary or obvious; and that, so far as the instant case was concerned, such a term would destroy the business efficacy of the undertaking.
Human fertilisation - meaning of 'embryo' - creation of embryos by cell nuclear replacement regulated by statute
R (Quintavalle) v Secretary of State for Health: CA (Master of the Rolls Lord Phillips of Worth Matravers, Lords Justice Thorpe and Buxton): 18 January 2002
The Human Fertilisation and Embryology Act 1990 established a licensing authority to regulate the creation of embryos. Section 1(1) defined an 'embryo' by reference to fertilisation.
Scientists subsequently developed cell nuclear replacement (CNR), a method of creating an embryo by introducing a nucleus from an adult human into an unfertilised egg with the potential to produce a clone.
The claimant successfully contended in judicial review proceedings that the Act only applied to embryos created by fertilisation so that no licence was required for embryos created by CNR. The Secretary of State appealed.
Kenneth Parker QC and James Eadie (instructed by the Solicitor, Department of Health) for the Secretary of State; David Anderson QC and Martin Chamberlain (instructed by Brown Cooper) for the applicant.
Held, allowing the appeal, that embryos created by CNR and by fertilisation were essentially identical in structure, and both shared the capacity to develop into a human being; that the legislative policy was to bring the creation and use of embryos under strict regulatory control for ethical reasons; that a regulatory regime which excluded embryos created by CNR was contrary to Parliament's intention in introducing the Act; that there were the most compelling reasons for giving section 1 a strained purposive construction and little that weighed against it; and that, accordingly, an organism created by CNR came within the definition of embryo in section 1(1) of the 1990 Act, and consequently any embryos so created were subject to regulation under the Act. (WLR)
LIMITATION OF ACTION
Maritime collision - application to strike out claim for damages for psychiatric injury as statute-barred - time running from date on which claimant first 'suffering' recognised psychiatric injury rather than date of collision
The Edward Duke of Windsor: QBD (Mr Justice Tomlinson):
22 January 2002
The claimant was at the helm of a pilot boat when it was in collision with a lifeboat in March 1998. He suffered no physical injury, but in August 2000 he brought an action in rem against the lifeboat for damages for psychiatric injury, sustained as a result of the collision, which he claimed did not commence until September 1999.
The owners of the lifeboat applied to strike out the action on the basis that the alleged injury had been 'suffered' on the date of the collision and that the claim was therefore barred by virtue of the two-year limitation period in section 190(3) of the Merchant Shipping Act 1995.
Christopher Smith (instructed by DLA) for the owners; Christopher Quinn (instructed by Browell Smith & Co, Newcastle upon Tyne) for the claimant.
Held, dismissing the application, that by enacting section 190(3)(b), Parliament had expressly chosen to make specific provision for cases where the date on which loss of life or injury was 'suffered' was not the same as the date of collision; that time had therefore started to run from the date on which the claimant had first begun to 'suffer' from a recognised psychiatric injury; and that, accordingly, the claim was not statute-barred.
Local education authority - duty of care - not liable for bullying of pupil occurring outside school
Bradford-Smart v West Sussex County Council: CA (Lords Justice Judge and Hale and Sir Denis Henry): 23 January 2001
The claimant attended a school under the control of the defendant local education authority.
Between the ages of nine and 12 she was a victim of bullying by other pupils, which did not occur in school but on the school bus and the housing estate where she lived. She brought an action against the authority claiming damages for psychiatric injury caused by bullying.
Dismissing the claim, the judge held that the duty of care owed by the school to its pupils was restricted to activity taking place inside the school. The claimant appealed.
Roger ter Haar QC and Nicholas Bowen (instructed by Teacher Stern Selby) for the claimant. Edward Faulks QC and Andrew Warnock (instructed by Vizard Oldham) for the authority.
Held, dismissing the appeal, that in general a school was not in control of its pupils once they left its charge and thus failure to exercise disciplinary powers outside the school would not normally be a breach of any duty of care; that, however, there could in exceptional circumstances be occasions when the duty of care owed by a school to its pupils would extend to activities taking place outside the school; but that on the facts it was clear that had the judge directed himself properly in law by applying a less restrictive test he would have reached the same conclusion.
Police Complaints Authority - investigation into alleged attack on claimant by officers - authority obliged to disclose eyewitness statements
R (Green) v Police Complaints Authority and Others: QBD (Mr Justice Moses): 21 December 2001
During an investigation by the Police Complaints Authority into a complaint that police officers had caused the claimant serious injury when they chased and ran over him in a police vehicle, the authority refused to disclose to the claimant statements of eyewitnesses to the incident by virtue of section 80(1)(a) of the Police Act 1996, which provided that no information received by the authority in connection with their functions be disclosed to other persons unless 'necessary for the proper discharge of' its functions. The claimant sought judicial review on the ground that his rights to life and not to be subjected to inhuman or degrading treatment or punishment had been infringed and the state had not complied with its obligation to hold an effective official investigation into those violations.
Richard Gordon QC and Stephen Cragg (instructed by Howells, Sheffield) for the claimant; Jonathan Crow and Steven Kovats (instructed by Treasury Solicitor) for the authority; David Nicholas Jones (instructed by Force Solicitor, South Yorkshire Police, Sheffield) for the Chief Constable of South Yorkshire; Timothy Spencer (instructed by Russell Jones & Walker) for Detective Sergeant Andrew Lawrence.
Held, granting the application, that public confidence in the adherence of the state to the rule of law required the involvement of the victim to the extent necessary to safeguard his legitimate interests, recognising him not merely as a witness but as a possible victim whose human rights might have been infringed; that that requirement overrode considerations of confidentiality and avoidance of prejudice to any police disciplinary proceedings; that the claimant's interests in the outcome of the investigation could not be safeguarded by merely permitting him to submit his evidence and see reasoned conclusions; and that, while police reports and comments should not be disclosed, he was entitled to comment on factual accounts of the same incident to which he was an eyewitness.
Documents disclosed during proceedings - application to maintain confidentiality after trial - court requiring specific reasons
Lily Icos Ltd v Pfizer Ltd (No 2): CA (Lords Justice Aldous, Buxton and Longmore): 23 January 2002
The patent holder wished to retain confidentiality, even after the proceedings had terminated, of a document disclosed by it during revocation proceedings, which was treated as confidential in the hands of the opponent during those proceedings.
The opponent had not sought the release of the then existing confidentiality order in respect of that document, but the judge himself, of his own motion, refused to make an order maintaining confidentiality. The patent holder appealed.
Richard Meade (instructed by Bird & Bird) for the patent holder; Colin Birss (instructed by Taylor Joynson Garrett) for the opponent.
Held, allowing the appeal, that good reasons were required for departing from the normal rule of publicity, and when considering an application in respect of a particular document, the court should take into account the role that the document had played or would play in the trial; that in dealing with issues of confidentiality between the parties, the court had to have in mind the 'chilling' effect of an order on the interests of third parties; that simple assertions of confidentiality and of the damage that would be done by publication should not prevail, and specific reasons should be shown why a party would be damaged by the publication of a document; that the entire trial had been held in public, even though the judge regarded it as justified to retain confidentiality in respect of a significant number of documents; that patent cases were subject to the same general rules as any other cases, but did present particular problems and were subject to particular considerations; and that since the information in the document was regarded as axiomatically confidential, not only by the patent holder, but also by everyone else engaged in the industry, that was a fear that could be legitimately acted upon.
Value added tax - university student union supplying soft drinks to students - union not 'university' or 'institution of university' entitled to exemption
Commissioners of Customs and Excise v University of Leicester Student Union: CA (Peter Gibson, Lords Justice Arden and Mr Justice Morland): 21 December 2001
The Commissioners of Customs and Excise sought to recover VAT on supplies of drinks made to students by the University of Leicester Student Union.
A VAT and duties tribunal held by an interim decision on a preliminary issue that the union was entitled to an exemption on any such supplies, which were closely related to the supply of education on the ground that the union was an integral part of the University of Leicester. The commissioners appealed and the judge allowed their appeal. The union appealed.
Rupert Baldry (instructed by Bray and Bray, Market Harborough) for the union; Owain Thomas (Solicitor, Customs and Excise, Salford) for the commissioners.
Held, dismissing the appeal, that an eligible body exempt from VAT under the Value Added Tax Act 1994 included a UK university or an institution of such a university supplying university education; that the provisions conferring exemption had to be construed restrictively; that eligible body explicitly did not include entities with functions and purposes other than the supply of education; and that, accordingly, as the student union did not supply education it did not come within the recognised categories entitled to exemption.
Income tax (Schedule E) - expenses - employee's travel and home office costs under home working scheme not deductible
Kirkwood (Inspector of Taxes) v Evans: ChD (Patten J): 25 January 2002
The taxpayer, who was a civil servant living in King's Lynn, opted to work under the terms of his employer's home-working scheme.
The scheme required him to provide and maintain his own office facilities at his home, and in addition to work one day each week at the employer's office in Leeds.
His claim for entitlement to deduct from schedule E income tax for 1997-98 and 1998-99 the expenditure incurred on travel and of maintaining an office at his home was upheld by general commissioners. The revenue appealed.
Kate Selway (instructed by Solicitor of Inland Revenue) for the revenue; the taxpayer in person.
Held, allowing the appeal, that section 198(1) of the Income and Corporation Taxes Act 1988 (relief for necessary expenses) applied for the year 1997-98, requiring that the employee be 'necessarily obliged' to incur the expenditure, and that the taxpayer, not being a person uniquely qualified to do his job and not having to do it by working at home, failed that test; that section 198(1A) of the Act, inserted by section 61(1) of the Finance Act 1998, applied to 1998-99 introducing the requirement of 'qualifying travelling expenses', but since the taxpayer's travel to Leeds amounted to 'ordinary commuting', his expenditure thereupon was excluded from such expenses by section 198(1A)(b)(ii) of the Act; and that since the taxpayer opted voluntarily to work from home and was not required to maintain a separate room for work, the expenditure on maintaining an office at his home was not wholly, exclusively and necessarily incurred in the performance of his duties and thus was not tax-deductible.
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