Law reports

Aviation

Carriage by air - accident - post-traumatic stress not 'bodily injury'

King v Bristow Helicopters Ltd; Morris v KLM Royal Dutch Airlines: HL (Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Steyn, Lord Hope of Craighead and Lord Hobhouse of Woodborough): 28 February 2002

In the first case, the pursuer had been a passenger in a helicopter that crash landed.

The crash caused him no physical injury but resulted in post-traumatic stress disorder and consequent onset of a peptic ulcer disease.

He claimed damages against the helicopter operator on the ground that both the stress disorder and the peptic ulcer disease were 'bodily injuries' within article 17 of the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929, as scheduled to the Carriage by Air Act 1961.

The Lord Ordinary allowed only the peptic ulcer disease claim to go to proof.

On appeal, the First Division allowed the whole claim to go to proof.

The helicopter operator appealed.

In the second case, the claimant had suffered clinical depression brought on as a result of a sexual assault when travelling as a passenger on board an aeroplane.

Without claiming any physical injury, she claimed damages against the airline on the ground that her depressive disorder was itself a bodily injury within article 17.

Her claim was upheld by a judge in the county court but the Court of Appeal held that it fell outside article 17.

The claimant appealed.

Colin Campbell QC and Marian Gilmore, both of the Scots Bar (instructed by Beaumont and Son for Shepherd & Wedderburn, WS, Edinburgh) for the defenders in the first case.

Michael S Jones QC, of the Scots and English Bars, and Shona Haldane, of the Scots Bar (instructed by Balfour & Manson, Edinburgh for Burnside Kemp Fraser, Aberdeen) for the pursuer.

Nicholas Braslavsky QC and Andrew Singer (instructed by Kippax Beaumont Lewis, Bolton) for the claimant in the second case.

Charles Haddon-Cave QC and Robert Lawson (instructed by Beaumont and Son) for the defendants.

Held, allowing the appeal in the first case and dismissing the appeal in the second, that a psychiatric condition which developed as a result of an accident on board an aircraft was not a 'bodily injury' within article 17 unless it could be shown by qualified expert evidence that the psychiatric condition complained of had caused an adverse physical symptom such as a stroke or peptic ulcer or (per Lord Nicholls of Birkenhead, Lord Mackay of Clashfern and Lord Hobhouse of Woodborough) was the expression of physical changes to the structure of the brain caused by the accident; and that since in neither case had it been sought to be proved that the passengers' depressive illnesses had involved changes to the structure of the brain, those illnesses had not been shown to be bodily injuries and fell outside article 17.

(WLR)

Contract

Sale of land by company - company not incorporated at date of contract - solicitor signing agreement as agent for company - solicitor entitled to enforce contract

Braymist Ltd and others v Wise Finance Co Ltd: CA (Lords Justice Judge, Latham and Arden): 20 February 2002

A solicitor signed an agreement for the sale of land as agent for the claimant, a company in the course of incorporation.

The agent subsequently became personally liable on the contract by virtue of section 36C(1) of the Companies Act 1985 and sought to enforce the contract.

The judge decided that section 36C gave a cause of action to the agent of the purported contractual vendor company and the agent recovered damages for breach of contract from the defendant purchaser who appealed.

Mark Blackett-Ord (instructed by Tarran Jones & Co, Crawley) for the purchaser; Barbara Rich (instructed by William Sturges & Co) for the claimants.

Held, dismissing the appeal, that the purpose of section 36C(1) was limited to complying with treaty obligations to implement article 7 of the EC Company Law Directive (68/151/CEE), removing the possibility that the agent would be held not liable on the ground that he merely confirmed the company's signature and putting such persons or agents in the same position as regards the enforcement of the contract as they would be at common law; that the function of the words 'and he is personally liable on the contract accordingly' in section 36C(1) was to establish liability only and to leave the question whether the agent could enforce the contract to the general law; that the common law therefore applied to determine whether such a person could enforce the contract; and that an agent was not only liable on the contract where his principal was a company in course of formation but was also entitled to sue on it.

(WLR)

Criminal

Trade marks - defendant charged with offence under statute - availability of statutory defences to civil actions

Regina v Johnstone; Regina v Croxson; Regina v Ho; Regina v Eley; Regina v Mayron Multimedia Ltd; Regina v Harrison: CA (Lords Justice Tuckey, and Pumfrey and Mr Justice Burton): 1 February 2002

The appellants, in separate trials, were convicted of, or after unsuccessful legal submissions pleaded guilty to, offences under section 92 of the Trade Marks Act 1994.

Their appeals and applications for leave to appeal formed the basis of certified questions, among other things, whether section 92 of the Trade Marks Act 1994 was compatible with Council Directive 89/104/EEC and whether a defendant could rely on the statutory defence under section 92(5) of the 1994 Act and also rely on sections 9, 10 and 11 of the 1994 Act.

David Lane QC, Charlotte Yarrow and John Boumphrey (instructed by WH Matthews, Staines) for Johnstone; Brian O'Neill (instructed by Crown Prosecution Service, Kingston-upon-Thames) for the Crown.

Ashley Wentworth Roughton (instructed by CCL) for Croxson; Ashley Wentworth Roughton (instructed by Rowles Davies Associates, Buckingham) for Eley; Craig Rush (instructed by Head of Legal Services, Worcestershire County Council and Head of Legal Services, Bournemouth Borough Council) for the prosecution.

The remaining defendants did not appear and were not represented.

Held, allowing the appeal in the cases of Johnstone and Harrison and refusing applications for leave to appeal in respect of the other defendants, that a defendant relying on the statutory defence provided by section 92(5) of the 1994 Act in relation to goods and its reference to 'infringement of the registered trade mark' could further rely on the defences in the civil infringement sections 9(1), (2) and section 10 of the 1994 Act; that the real issue was whether defences of 'not in the course of trade' under sections 11 and 12, of 'not trade mark use' or of 'invalidity' were available in criminal proceedings although the sections specified acts that did not amount to infringement; that section 92(5) presupposed that the illegal unauthorised use amounted to a civil infringement and unless there was a civil infringement of the mark, there could be no offence under section 92; that a defendant could not use the defence that he had not paid any attention to or was reckless as to a mark's existence, or if he thought (mistakenly) it was an infringing manner of use and also such a defence would have to be considered in the light of R v Lambert [2001] 3 WLR 206; that articles 5 to 7 of the Council Directive 89/104/EEC, which corresponded to sections 9 to 12 of the 1994 Act, provided complete harmonisation of rules relating to rights conferred by registration of a trade mark under the national laws of member states and that, accordingly, there was no general incompatibility between the Act of 1994 and the directive and a defendant relying on the statutory defence provided by section 92(5) of the 1994 Act might further rely upon sections 9, 10 and 11 of the 1994 Act.

Trial - defendant absconding - discretion to conduct trial in absence - no breach of human rights

R v Jones (Anthony): HL (Lord Bingham of Cornhill, Lord Nolan, Lord Hoffmann, Lord Hutton and Lord Rodger of Earlsferry): 20 February 2002

The appellant, charged with conspiracy to rob, was committed on bail for trial.

Before trial, he absconded.

The judge ruled that the trial should commence.

The appellant was unrepresented, his legal representatives having withdrawn.

He was convicted and sentenced to imprisonment.

His appeal against conviction was dismissed by the Court of Appeal (Criminal Division).

He appealed.

Stephen Solley QC and Graham Brodie (instructed by Sharpe Pritchard for Quinn Melville, Liverpool) for the appellant.

David Perry and Duncan Penny (instructed by Crown Prosecution Service, London Division, casework directorate) for the Crown.

Held, dismissing the appeal, that a judge had a discretion, to be exercised with great caution, to commence a trial in the absence of the defendant, and no contravention of the European Convention on Human Rights was involved, although it was desirable that an absent defendant should be represented.

(WLR)

Evidence - defendant putting character in issue by claiming to have no foreign convictions - prosecution seeking to prove foreign convictions - means by which foreign convictions to be proved

R v Mauricia: CA (Lord Justice Longmore, Mr Justice Johnson and Judge Sir Rhys Davies QC): 25 February 2002

During his trial the defendant voluntarily put his character in issue.

The prosecution successfully applied to adduce evidence that he had convictions in the Netherlands and in so doing relied on fingerprint evidence, the evidence of a police officer from that jurisdiction, and 'certified certificates' of the convictions relied upon.

The principal ground of appeal challenged the legality of that approach to rebutting the claim of good character.

Richard Kelly (instructed by Sue Tuck) for the appellant.

Martin Griffith (instructed by the Solicitor, Customs and Excise) for the Crown.

Held, dismissing the appeal, that no legislation since the Evidence Act 1851 had addressed the issue of establishing that a defendant had foreign convictions; that although that Act contained no provisions equivalent to section 73 of the Police and Criminal Evidence Act 1984, the prosecution could demonstrate a foreign conviction under section 7 of the 1851 Act by reference to 'examined copies' or 'authenticated copies' of the foreign court's record of the convictions; that the prosecution must also prove that the documents related to the particular defendant, which could be done by means of admissible evidence, which in the ordinary way went to prove that the person referred to and the defendant were the same person; that fingerprint evidence was suitable for that purpose, and there was nothing in the 1851 Act to suggest that the approach adopted was inappropriate; that the provisions affecting fingerprinting contained within section 39 of the Criminal Justice Act 1948 did not apply; and that, accordingly, the judge had been entitled to allow the foreign convictions to be proved in the way that he had.

Abuse of process - blatant failure to adhere to rule of law when claimant deported from Zimbabwe to England - conviction subsequently quashed - claimant not entitled to compensation for punishment suffered

R (Mullen) v Secretary of State for the Home Department: QBD (Lord Justice Simon Brown and Mr Justice Scott Baker): 21 February 2002

The claimant was convicted of conspiracy to cause explosions likely to endanger life or cause serious injury to property and was sentenced to 30 years' imprisonment.

The Court of Appeal quashed the conviction after the claimant had been in prison for nearly nine years, leave to appeal having been granted out of time: R v Mullen [2000] QB 520.

The appeal was quashed on the ground that his deportation from Zimbabwe to the UK to stand trial involved an abuse of process rendering his conviction unsafe.

The claimant applied to the secretary of state for compensation pursuant to section 133 of the Criminal Justice Act 1988 for the punishment suffered by him.

The application was refused and he sought judicial review.

Campaspe Lloyd-Jacob (instructed by Christian Fisher) for the claimant; Philip Sales and Hugo Keith (instructed by the Treasury Solicitor) for the secretary of state.

Held, dismissing the application, that the phrase 'miscarriage of justice' in the context of section 133 of the 1998 Act meant: the wrongful conviction of an innocent accused; that the word 'unsafe' could not be interpreted to include the expression 'miscarriage of justice' in the sense used in section 133; that compensation went only to those ultimately proved innocent, not whose convictions were adjudged unsafe; and that, accordingly, since the claimant's appeal to the Court of Appeal succeeded not because the court had any doubt as to the correctness of the verdict but rather because it regarded the trial as one which ought not to have taken place, he was not entitled to compensation.