Law reports
CHILDRENChild's first name - separated parents each registering child by different names - mother entitled to use her chosen nameIn re H (Child: First name): CA (Lord Justice Thorpe and Lord Justice Buxton): 29 January 2002When the mother was six weeks pregnant the married parents separated.
Until he visited her in hospital to discuss the child's names, the father had no contact with the mother.
Without communicating with her, the father registered the child six days before she registered him.
Each chose different given names.
The mother's registration was cancelled following an administrative decision that the child's legal birth registration was the first in time.
The child was brought up by the mother as a single parent and known locally by the mother's chosen name, with contact to the father.
The mother applied for a decision on the child's name.
An order was made that the child be known for all external purposes by his registered name.
The mother appealed.Mark Gore (instructed by Andrew M Jackson & Co, Kingston-upon-Hull) for the mother.
Marisa Allman (instructed by Hamers, Sheffield) for the father.Held, allowing the appeal and deleting the order concerning the child's name from the residence and contact order, that given names were less significant than a child's surname and so different considerations applied to a child's surname from those applying to his given names; that where a child's registered first name was not the name used by primary carer, the court should take a worldly common sense approach to the given name and not place too much emphasis on the statutory process of registration; and that the mother was entitled to use her chosen name for the child for the purposes of education, health services and community activities, provided that she recognised that the child had an immutable series of names by statutory registration.CONFLICT OF LAWSGerman proceedings served on defendant in England giving two weeks to arrange defence - default judgment served five weeks later - judgment enforceable in England as 'sufficient time' given to enable defendant to arrange defenceTSN Kunststoffrecycling GmbH v Jurgens: CA (Lords Justice Robert Walker, Rix and Dyson) : 25 January 2002On 9 February 1999 the claimant served proceedings brought by it in Germany on the defendant in England, giving two weeks within which to arrange his defence.
On 16 March 1999 the claimant entered a default judgment for DM500,000 plus interest and applied pursuant to the Civil Procedure Rules (CPR), schedule 1, Rules of the Supreme Court, order 71, rule 3 to register the judgment and enforce it against the defendant's property in England.
The defendant contended that the judgment was premature since the two-week period given to enter appearance was insufficient and was contrary to article 27(2) of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters as enacted by the Civil Jurisdiction and Judgments Act 1982.
Mr Justice Jack granted the application.
The defendant appealed.Adrian Jack (instructed by Bates Wells & Braithwaite) for the defendant.
Michael Davey (instructed by Pritchard Englefield) for the claimant.Held, dismissing the appeal, that in determining whether 'sufficient time to enable the defendant to arrange for his defence' had been given for the purposes of article 27(2) of the convention, the court should have regard to the whole period from the time of service of the proceedings to the time of entering the default judgment, which in this case was five weeks; and that the judge had been entitled to conclude that that constituted sufficient time and there was no breach of article 27(2).DAMAGES/LIBELJudge suggesting to jury bracket for damages in libel action - jury awarding aggravated compensatory damages - Court of Appeal not to interfere with award unless it substantially exceeded highest jury could reasonably have thought necessary Kiam v MGN Ltd: CA (Lords Justice Simon Brown, Waller and Sedley): 28 January 2002The claimant succeeded on his defamation action against a national newspaper and was awarded aggravated damages.
The newspaper challenged the quantum of the award as excessive.Victoria Sharp QC (instructed by Olswang) for the newspaper.
Desmond Browne QC and Lucy Moorman (instructed by Peter Carter-Ruck & Partners) for the claimant.Held, dismissing, the appeal (Lord Justice Sedley dissenting), that the Court of Appeal would not interfere with damages awarded by a jury unless it regarded the award as substantially exceeding the highest a jury could reasonably have thought necessary; that where the judge had suggested to the jury a bracket for damages that was a relevant consideration for the court; that generally the only detailed guidance on figures should come from the judge and if he was mindful to suggest a bracket then preferably the bracket should be formally discussed before being fixed, with each side given proper opportunity to exchange skeleton arguments and authorities showing how they intended to argue the matter; that, where a close comparable was suggested by either side to be in point, consideration should be given to handing the jury an agreed note emphasising the points each side wished to emphasise; that otherwise counsel should not generally refer to comparables and, if they did, the judge should be alert to explain to the jury how they were being properly taken into account in his bracket; and that the award in the present case was not excessive and the court would not interfere.EUROPEAN COMMUNITY European environmental objectives - licence for incineration of animal carcasses and planning permission for extension of waste disposal site - authorities not failing to give effect to environmental objectives R (Thornby Farms Ltd) v Daventry District Council; R (Murray) v Derbyshire County Council: CA (Lords Justice Pill and Robert Walker and Mr Justice Laddie): 22 January 2002.The local authority in the first case granted a licence for disposal of animal carcasses by incineration on land adjacent to land belonging to the applicant, a farmer who claimed that the disposal operation was offensive to his land because the incinerator was inadequate to contain and control emission of pollution by the operation.Another local authority in the second case granted planning permission to extend a waste disposal site closer to a village.
The applicants each sought judicial review of the authorities' decisions, on the ground that they contravened Council Directive 75/442/EEC, as amended, on environmental objectives.
The applications were dismissed.
The applicants appealed.David Wolfe (instructed by Public Interest Lawyers, Birmingham) for the applicants.
Stephen Hockman QC and Peter Harrison (instructed by John Hughes Law Practice, Birmingham) for the first local authority.
Alan Evans (instructed by the Solicitor and County Secretary, Derbyshire County Council, Matlock) for the second local authority.Held, dismissing the appeals, that the objectives in article 4 of the directive and regulation 4 of Waste Management Licensing Regulations 1994 and the obligation under section 7(2) the Environmental Protection Act 1990 to use the best available technique to control pollution did not oblige the authorities to make world-wide inquiries as to the best available equipment and techniques or to override considerations as to the limited resources available to meet the environmental considerations; that the objective was not an overriding consideration; and that, accordingly, where the grant of planning permission for the waste of disposal site was properly recommended on the basis that the benefits of the proposal outweighed the disbenefits, neither the obligation to take necessary measures under article 4 nor the recognition of the objective in the regulations required permission to be refused.FAIR TRADINGConsumer credit - regulated credit agreement entitling lender to fix early redemption figure on basis of maintaining high interest rate despite fall in market rate - bargain not 'extortionate' so as to enable court to reopen agreementBroadwick Financial Services Ltd v Spencer and another: CA (Lords Justices Auld, Robert Walker and Dyson): 30 January 2002The defendants obtained a loan of 7,000 from a finance company and executed a regulated credit agreement for a loan of 7,700 to cover a brokerage fee of 700 and a second mortgage of their home to secure the loan.
The claimant finance company, as the assignee of the benefits of the agreement and mortgage, applied for possession of the mortgaged property when the defendants defaulted on payments.The defendants counterclaimed to reopen the credit bargain under sections 137-140 of the Consumer Credit Act 1974 on the ground that the bargain was 'extortionate' because under the agreement the lender had the right to give an early redemption figure maintaining the high rate of interest stated in the agreement while the market rate had fallen steadily.
The judge made a possession order and dismissed the counterclaim.
The defendants appealed.Neil Levy (instructed by Ralph & Co, Newquay) for the defendants.
Peter Wulwik (instructed by Blatchfords, South Harrow) for the claimant.Held, dismissing the appeal, that for a bargain to be 'extortionate' the payment required to be made had to be grossly exorbitant, contravening the ordinary principle of fair dealing; that neither the practice of the lender not to vary the rate of interest despite a significant fall in market rate, nor the clause in the agreement reserving the exclusive right of the lender to give the redemption figure for early repayment of the loan, was sufficient reason to reopen the agreement under sections 137-140 of the1974 Act as an extortionate bargain.FamilyFinancial dispute resolution - parties' outline agreement approved by judge - unperfected court orderRose v Rose: CA (Lord Phillips of Worth Matravers MR, Lords Justice Thorpe and Buxton):20 February 2002The parties separated after 14 years of marriage.
The parties disagreed on whether part of the wife's lump sum should be written in trust.
A financial dispute resolution (FDR) hearing took place before Mr Justice Bennett.Evidence and written submissions were filed in advance.
The judge heard oral submissions and retired briefly, then gave a reasoned statement of the likely outcome in the event of a contested hearing.The judge found for the wife on the question of a trust.
After negotiations the husband accepted her proposal.
The judge recorded the outline agreement.
The husband later resiled from the agreement.
At a subsequent hearing Mr Justice Coleridge considered that the earlier FDR reached only a broad agreement on the settlement terms, gave directions for a further FDR and accelerated the trial if that hearing failed.
The wife appealed.Florence Baron QC and Deborah Bangay (instructed by Radcliffes) for the wife.
Nicholas Mostyn QC and Lewis Marks (instructed by Russells, Chingford) for the husband.Held, allowing the appeal and confirming Mr Justice Bennett's order, that the FDR could take many forms dependent on the judge's style and practice, and no restrictions should be imposed on the judicial discretion in that innovative and elastic field; that although very few judges were trained mediators, those with long experience in a specialist field were supremely well qualified to offer neutral evaluation, as Mr Justice Bennett did; that an outline agreement between the parties recorded by the judge at an FDR amounted to the making of an unperfected court order in the agreed terms; and that, accordingly, one party could not resile from that agreement before it was perfected and seek to go for trial.HOUSINGNon-secure tenancy granted to homeless persons - landlords acting fairly and reasonably in conformity with legislative scheme seeking possession - no interference with convention rightsSheffield City Council v Smart; Central Sunderland Housing Company Ltd v Wilson: CA (Lords Justice Thorpe, Laws and Kay): 25 January 2002Both defendants were unintentionally homeless and were granted non-secure tenancies under section 193 of the Housing Act 1996.
Both were served with notices to quit following complaints of nuisance.
The landlords then commenced possession proceedings and after contested hearings were granted orders for possession.
The defendants appealed.
Although both notices to quit and the issue of possession proceedings in the second case antedated the coming into force of the Human Rights Act 1998 the Court of Appeal permitted the defendants to rely on the European Convention on Human Rights.Ashley Underwood QC and Thomas Tyson (instructed by City Solicitor, Sheffield City Council, Sheffield) for the landlord in the first case.
Jan Luba QC and Elizabeth Davies (instructed by Irwin Mitchell, Sheffield) for the defendant in the first case.
Ashley Underwood QC and Richard Merrit (instructed by Alison Dixon, Sunderland) for the landlord in the second case.
Jan Luba QC and Beatrice Prevatt (instructed by Ben Hoare Bell, Sunderland) for the defendant in the second case.Held, dismissing the appeals, that where Parliament had enacted provisions by which a landlord could grant a non-secure tenancy to a homeless person under section 193 of the Housing Act 1996 and on certain conditions terminate the tenancy and take possession proceedings, provided that the landlord acted fairly and reasonably in conformity with the scheme it did not thereby unjustifiably interfere with the tenant's right to respect for her private and family life and her home.IMMIGRATIONAsylum seeker - unlawful maltreatment by state agents - well-founded fear of persecution for convention reasonSvazas v Secretary of State for the Home Department: CA (Lords Justice Simon Brown and Sedley and Sir Murray Stuart-Smith): 31 January 2002The applicant fled Lithuania, where he had unlawfully been systematically maltreated by the police for belonging to a banned political party.
He sought asylum in the UK on the ground that he had a well-founded fear of persecution from which the Lithuanian state was unable or unwilling to protect him.An adjudicator refused the application and his decision was upheld by the Immigration Appeal Tribunal on the ground that the protection afforded to the applicant in Lithuania, though imperfect, was sufficient.
The applicant appealed.Hugh Southey (instructed by Purcell Brown & Co) for the applicant.
Robin Tam (instructed by Treasury Solicitor) for the secretary of state.Held, allowing the appeal, that the case had not been properly decided by the tribunal; that the issue was whether, as a member of a political party in custody in Lithuania, the applicant faced particular treatment which amounted to persecution within article 1A(2) of the Convention on the Status of Refugees (1951) (Cmnd 9171), as amended by the protocol of 31 January 1967 (Cmnd 3906) and was treatment by state agents which the state, despite its endeavours, could not control; that the tribunal's findings of discriminatory brutality meted out by reason of the victim's political opinion were sufficient to sustain a finding of persecution for a convention reason; and that, therefore, the case would be remitted to the tribunal for rehearing.
(WLR)JUSTICESSubmission of no case to answer - justices rejecting defendant's submission - no obligation to give reasons for rejecting submissionMoran v Director of Public Prosecutions: QBD (Mr Justice Maurice Kay): 30 January 2002Three informations were preferred against the defendant.
At the close of the prosecution case, the defendant made a submission of no case to answer in respect of all three informations.
The justices found that there was a case to answer but refused to particularise their reasoning.
On an appeal by way of case stated, the question for the court was whether it was lawful for the justices to refuse to give their reasons for rejecting the defendant's submission.Trevor Siddle (instructed by Leslie Oliver & Co) for the defendant.
Philip Goddard (instructed by Crown Prosecution Service, Harrow) for the prosecutor.Held, dismissing the appeal, that the coming into force of the Human Rights Act 1998, and in particular the right to a fair trial contained in article 6(1) set out in part I of schedule 1, had not given rise to a legal obligation upon justices to give reasons for rejecting a submission of no case to answer; that summary trial was a highly specific procedure and it would not be in the interests of justice if justices were required to give detailed reasons for their assessment of the evidence at the end of the prosecution case; and that, accordingly, the justices acted lawfully.PATENTSApplication to Comptroller of Patents for revocation of patent - application withdrawn - comptroller having jurisdiction to continue with proceedingsR (Ash & Lacy Building Products Ltd) v Comptroller General of Patents, Designs and Trade Marks: QBD (Mr Justice Laddie): 1 February 2002Applications were made to the Comptroller-General of Patents, Designs and Trade Marks pursuant to section 72 of the Patents Act 1977 for revocation of the claimant's patent on the ground that it was invalid.
The parties settled and the applicant withdrew the applications, but the Patents Office notified the claimant that it might continue the proceedings, if it were in the public interest to do so, pursuant to paragraphs 72.27 to 72.29 of the Manual of the Patent Office.
Subsequently, a deputy director of the Patent Office, on behalf of the comptroller, decided that no order for revocation would be made under section 72, but the construction of the patent given by the deputy director was embarrassing to the claimant.
The claimant sought judicial review of the basis for the decision and challenged the legitimacy of the comptroller's practice in continuing to act under section 72 following the withdrawal of the revocation proceedings by the applicant.Michael Edenborough (instructed by Nabarro Nathanson) for the claimant.
Daniel Alexander (instructed by the Treasury Solicitor) for the comptroller.Held, refusing the relief sought, that the comptroller had jurisdiction to continue with her examination of the validity of a patent following the withdrawal of revocation proceedings brought under section 72, where it was in the public interest to do so; that, although previous authorities relating to the Patents Act 1949 were not binding, their reasoning could be applied to cases concerning the 1977 Act in order to explain the practice of the comptroller; that there was a difference in practice between the Patents Court, under CPR part 38, and the comptroller, under the Manual of the Patent Office, since if the revocation proceedings had been brought before the Patents Court the court could not continue with those proceedings after the applicant had withdrawn them; and that there had been no procedural impropriety or unfairness in the taking of the decision.PLANNINGApplicants proposing temporary use of land for off-road vehicle sports - certificate of lawful use refused on basis that physical changes to land made proposed use permanent - duration of proposed use and reversion of land to normal use relevant factorsRamsey and another v Secretary of State for the Environment, Transport and the Regions and another: CA (Lords Justice Aldous, Robert Walker and Keene: 1 February 2002The claimants created on their agricultural land a track for use by off-road vehicles.
By article 3(1) of and part 4, class B of schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, planning permission was granted for 'the use of any land for any purposes for not more than 28 days in total in any calendar year.' The local authority granted a certificate of lawful development in respect of the track, but refused a certificate in respect of use of the land for vehicular sports activities for 28 days or less per year.
An inspector dismissed the claimants' appeal.
A judge dismissed the claimants' application to quash that decision.
The claimants appealed on the ground that the proposal involved a temporary or occasional change of use from its permanent or normal use, which was authorised by the 1995 order, rather than a permanent change of use from a single to mixed use of which one element was characterised by intermittent or seasonal activities.Simon Bird (instructed by Gotelee & Goldsmith, Ipswich) for the claimants.
Timothy Mould (instructed by Treasury Solicitor ) for the secretary of state.Held, allowing the appeal, that in deciding whether a proposed use of land was permanent or temporary the crucial factors were the duration of the proposed use and the reversion of the land to its normal use; that the judge had been wrong to decide that physical changes which had been made to the land were relevant to the assessment of the character of the proposed use of the land; and that provided that the use lasted 28 days or less and the land reverted to its normal use, the authorisation given by the 1995 Order covered such use and physical changes to the land would only be a relevant consideration if they made it more difficult for the land to revert to its normal use.PRACTICEFamily proceedings in private - proceedings not normally confidential - disclosures to media not to be restrained by injunctionClibbery v Allan and Another: CA (Dame Elizabeth Butler-Sloss President, Lords Justice Thorpe and Keene): 30 January 2002Following her unsuccessful application under section 36 of the Family Law Act 1996 for an occupation order in respect of a flat owned by A's company, which had been heard in private, the applicant had made detailed disclosures about the proceedings in the media.
A obtained an injunction without notice, prohibiting further disclosure, which was subsequently discharged by Mr Justice Munby [2001] Gazette, 5 July, 40.
A appealed on the grounds, among other things, that rule 3.9(1) of the Family Proceedings Rules 1991 made such proceedings in private confidential.Andrew Moylan QC and Christopher Pocock (instructed by Kingsley Napley) for A.
James Price QC and Andrew Monson (instructed by Reynolds Porter Chamberlain) for the applicant.Held, dismissing the appeal, that under the Family Proceedings Rules 1991, family courts could hear cases in private and exclude the public where those rules so permitted; that, except for the recognised classes of case concerning children or ancillary relief or other situations manifestly requiring permanent confidentiality, family proceedings heard in private were not in a separate category from other civil proceedings; that the court should therefore consider whether the proceedings came within those recognised categories or section 12 of the Administration of Justice Act 1960, or contained other factors which might make disclosure prejudicial to the administration of justice including (rarely) the requirements of section 11 of the Contempt of Court Act 1981; and that there was no general requirement that a hearing of a section 36 application in private should remain forever entirely confidential unless it came within section 12 of the 1960 Act or there was an element of compulsion present which would give rise to an implied undertaking.
Customs disputing taxpayer's claim for VAT credit - appeal pending - taxpayer's application for returnable interim payment of entire sum refusedCapital One Developments Ltd v Customs and Excise Commissioners: ChD (Mr Justice Neuberger): 4 February 2002The commissioners rejected the taxpayer's claim for a VAT credit in the sum of 8 million.
The taxpayer appealed to the VAT and duties tribunal and applied to the commissioners for payment of the disputed sum to be made to it pending the appeal, on the basis that the sum would be repaid in the event of the tribunal finding against it.
The commissioners refused on the ground that they were not satisfied that the taxpayer had any entitlement to that sum.
The taxpayer applied under CPR rule 25.1 for an interim payment of 8 million.Michael Patchett-Joyce (instructed by Penningtons) for the taxpayer.
Jonathan Peacock QC (instructed by the Solicitor for Customs and Excise) for the commissioners.Held, dismissing the application, that, although it would have been more appropriate for the taxpayer to have applied for judicial review of the commissioners' decision, the court had jurisdiction to hear the matter; that in general a court could not grant an interlocutory injunction where there was no action for it to entertain; that while there was no absolute bar on the court granting such an interim remedy, it would require very special facts before the court would use its interlocutory jurisdiction to order an interim payment on a returnable basis; and that, on the facts of the instant case, it was not appropriate for the court to grant the interim payment.
Decisions involving children and incompetent adults - best interests decisions to be taken under inherent jurisdiction - challenges to public authorities' decisions to be determined on judicial review A (A Patient) v A Health Authority and Others; In re J (A Child); R (S) v Secretary of State for the Home Department and Another: FD (Mr Justice Munby):24 January 2002An originating summons in the Family Division sought orders compelling the defendant authorities to allow A, an incompetent adult, to return to a long-term care home in his best interests.
An originating summons in the Family Division issued on behalf of S, who was 16, sought an order against the home secretary that her child, J, be made a ward of court and declarations under the inherent jurisdiction that S and J should not be separated on S's return to secure detention.Fenella Morris (instructed by Bindman & Partners) for A.
Daniel Beard (instructed by Capsticks) for the health authority and the local authority.
John Hawkridge, solicitor (of Hawkridge & Co, Gillingham) for A's father.
Ian Wise (instructed by Bhatia Best, Nottingham) for S.
Kristina Stern (instructed by Treasury Solicitor) for the home secretary.
Brian Jubb (instructed by the Solicitor, the local authority) for the local authority.
Robin Barda (instructed by Official Solicitor) for J.Held, that cases which, although concerning the welfare of either children or incompetent adults, required the review of a decision of a public authority were properly litigated by way of an application for judicial review in the Administrative Court, while cases about their best interests should be litigated in the Family Division before judges of that division even if some issue of public law were involved; that, while A's place of residence was to be determined on the best interests test, the challenge to the local authority's decision to move him from the care home raised substantive public law issues, and a declaration under the inherent jurisdiction attempting to coerce a public authority would not be appropriate unless the court were satisfied that it did not encroach unjustifiably on the authority's functions; and that S's dispute with the home secretary plainly had to be resolved on judicial review, although those aspects of the proceedings concerning welfare prima facie were to be decided in accordance with normal Family Division principles.
(WLR)TAXATIONLandfill tax - disposal of waste - recyclable material capable of being 'waste'Commissioners of Customs and Excise v Parkwood Landfill Ltd: ChD (Sir Andrew Morritt V-C): 29 January 2002The taxpayer was the operator of a landfill site where a city council disposed of unwanted material.
Some of the material was recycled and sold to the taxpayer who used it for road making and landscaping on its other landfill sites.
The VAT and duties tribunal held that there was no disposal of material 'as waste' for the purposes of section 40(2)(a) of the Finance Act 1996 because those words connoted a disposal of material on the grounds that it was useless; and that accordingly there was no liability to landfill tax.
The Commissioners of Customs and Excise appealed.Philippa Whipple (instructed by the Solicitor, Customs and Excise) for the commissioners.
Richard Barlow (instructed by Nabarro Nathanson) for the taxpayer.Held, allowing the appeal, that there was no requirement that in order to constitute 'waste' the material must be of no use, nor did the suitability for recycling preclude recognition of material as waste; that the meaning of 'waste' was linked to the intention of the person making the disposal; that in ascertaining whether the person making the disposal intended to discard the material it was irrelevant that that or any other person could benefit from the material; that the only inference that could be drawn from the evidence was that the council intended to discard the material; and that, accordingly, the material delivered to the landfill site was subject to a disposal of material as waste and all recycled material was derived from that material.
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