Law reports

Law reports

CONTRACT

Worldwide trademark dispute - settlement agreement governed by English law - agreement not in restraint of trade

WWF - World Wide Fund for Nature (formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc: CA (Lord Phillips of Worth Matravers MR, Lords Justice Judge and Carnwath): 27 February 2002

The claimant, founded in 1961, had become the largest private international nature organisation.

Its name, and the initials WWF, were extremely well known worldwide.

The defendant, the successor to a business known from 1979 as the World Wrestling Federation, started using the initials WWF.

Trademark disputes arose and from1993 the claimant threatened legal proceedings in numerous countries.

With legal representation the parties negotiated a settlement agreement, concluded in January 1994.

The defendant undertook, among other things, to refrain from using the initials WWF orally, in printed, written or visual form anywhere in the world.

More limited restrictions applied in the US.

The defendant complied initially, but after establishing a Web site in 1997 - www.wwf.com - it ignored the contract.

The claimant started proceedings in December 2000 to enforce the agreement, and obtained summary judgment.

The defendant appealed.

Geoffrey Hobbs QC, Siobhan Ward and Emma Himsworth (instructed by SJ Berwin & Co) for the Federation; Christopher Morcom QC and Mark Brealey (instructed by Edwin Coe) for the Fund.

Held, dismissing the appeal, that a settlement agreement by which parties resolved a genuine dispute as to the use of a trademark was presumed to represent a reasonable division of their trading interests unless the defendant seeking to challenge it could show justification for releasing him from it on restraint of trade or other grounds; that the defendant had failed to establish the threshold requirement for the application of the doctrine of restraint of trade either at common law or under article 81 (formerly article 85) of the EU treaty; and that, accordingly, the claimant was entitled to an injunction to enforce its rights under the agreement.

Construction contract agreed orally - written evidence of agreement - no jurisdiction to refer to adjudication unless all terms recorded in writing

RJT Consulting Engineers Ltd v DM Engineering (NI) Ltd: CA (Lords Justice Auld, Ward and Robert Walker): 8 March 2002

The claimant orally agreed with the defendant to complete an outline design for refurbishment of a hotel.

The agreement was followed by a letter from the defendant and a design and a drawing schedule was prepared by the claimant.

Disputes arose between the parties and the defendant referred its claim for professional negligence and breach of contract to an adjudication under section 108 of the Housing Grants, Construction and Regeneration Act 1996 on the basis that the dispute arose from a 'construction contract' within the meaning of section 104.

The claimant's application for a declaration that the contract, not being an agreement in writing for the purpose of section 107 of the Act, could not be referred to adjudication under section 108 was dismissed.

The claimant appealed.

Graham Wood and Dean O'Leary (instructed by Brunton & Co, Aberystwyth) for the claimant; John Blackburn QC (instructed by Hill Dickinson, Liverpool) for the defendant.

Held, allowing the appeal, that for an agreement to be in writing within the meaning of section 107, it was not sufficient that there was written evidence of its existence; that the written record relied upon should record (per Lords Justice Ward and Robert Walker) all its terms or (per Lord Justice Auld) all the terms material to the issue or issues giving rise to the reference; and that in the absence of such a record there was no jurisdiction to refer to adjudication under section 108.

CRIMINAL

Defendant passing roadside breath test - police arresting on suspicion of driving under influence of drink - arrest lawful

Director of Public Prosecutions v Robertson: QBD (Mr Justice Newman): 4 March 2002

The defendant was driving his car and was stopped by police officers.

A roadside breath test produced a negative result.

The officers arrested him on suspicion of driving under the influence of drink or drugs contrary to section 4 of the Road Traffic Act 1988 because they believed that he had not provided a sufficient quantity of breath and he had subsequently slurred his words when trying to name his solicitors.

At the police station the defendant provided two specimens of breath, both of which contained alcohol above the prescribed limit, and he was charged with driving with excess alcohol contrary to section 5 of the 1988 Act.

The justices found that he had been arrested unlawfully and excluded the evidence obtained at the police station under section 78(1) of the Police and Criminal Evidence Act 1984.

The Director of Public Prosecutions appealed by way of case stated.

Kerry Barker (instructed by Crown Prosecution Service, Wiltshire) for the Director of Public Prosecutions; Christopher Smyth, solicitor-advocate (of Bishop Longbotham & Bagnall, Swindon) for the defendant.

Held, allowing the appeal, that the justices were plainly wrong to have found that the police officers had acted improperly in failing to arrest the defendant for failing to provide a specimen of breath, and were wrong to have found that they had acted improperly in arresting him after he had passed a breath test; that the powers conferred under section 4 of the 1988 Act did not fall away simply because the defendant had passed a roadside breath test; and that, accordingly, in such circumstances a police officer retained the power to arrest a driver on the ground of reasonable suspicion that he was or had been committing an offence under section 4.

DAMAGES

Personal injuries - claimant losing ability to care for disabled brother - claimant entitled to damages in respect of carer services

Lowe v Guise: CA ( Lords Justice Potter and Rix, Mr Justice Morland): 26 February 2002

The claimant was injured in an accident.

He was thereafter unable to continue caring for his disabled brother for 77 hours per week, but was able to do so for 35 hours per week and that entitled him to receive invalid care allowance.

The claimant contended that the services he was no longer able to provide had benefited the household as a whole and claimed the value of 42 hours per week carer services and damages for loss of employment capacity.

Liability was not in issue.

The judge heard two preliminary issues and decided that the claimant was not entitled to recover damages for carer services and his claim for lost earning capacity should be assessed with reference to the fact that, but for the accident, he would have continued to care for his brother and would therefore have been unavailable for remunerative work.

The claimant appealed.

Mark Anderson (instructed by FA Greenwood & Co) for the claimant; Simon King (instructed by Irwin Mitchell, Birmingham) for the defendant.

Held, allowing the appeal on the first issue, that an injured claimant who worked, albeit gratuitously, for his family suffered the loss of being able to contribute the value of his service to the needs of his family; that although the claimant had suffered no loss so far as maintaining his state allowance was concerned, he had nevertheless suffered a loss because, even though his care was provided gratuitously, it could and ought, as a matter of policy, to be measured in money's worth; and that, accordingly, the claimant was entitled to recover damages in respect of the loss of his ability to look after his brother.

EQUITY AND SUCCESSION

Equitable assignment of shares - no transfer document delivered to transferee - assignment valid

Pennington and Another v Crampton and Others: CA (Lords Justice Schiemann, Clarke and Arden); 4 March 2002

The deceased transferred 400 shares in a family company by way of gift to her nephew (the transferee).

She told the transferee about the gift and signed a transfer form which she delivered to the company auditor, as her agent, for registration.

The transferee agreed to become a director of the company which he could not have done without shares being transferred to him.

The judge held that the transfer amounted to a valid equitable assignment notwithstanding that the transfer form had not been delivered to the transferee or registered in the company's register of shares before the death of the deceased.

Two family members, who were defendants before the judge, appealed.

Bernard Weatherill QC and John McCarroll (instructed by Mace & Jones, Liverpool) for the appellants; John McGhee (instructed by DLA) for the transferee.

Held, dismissing the appeal, that in the circumstances it would have been unconscionable for the deceased to have withdrawn the gift; and that, although in In re Rose [1952] Ch 499 gifts of shares were only completely constituted when the donor executed share transfers and delivered them to the transferees, it did not follow that delivery could not in some circumstances be dispensed with if there was a clear finding that an immediate gift was intended by the transferor.

HUSBAND AND WIFE

Financial provision - consent order - application to set aside consent order on basis of subsequent House of Lords decision refused

S v S (Ancillary Relief: Consent Order): FD (Mr Justice Bracewell): 4 March 2002

In September 2000 the district judge made a consent order in ancillary relief proceedings.

The wife applied to set aside, or for permission to appeal out of time against, the order on the ground that a decision of the House of Lords in October 2000 had undermined or invalidated the basis on which the order had been made.

Philip Moor QC and Stephen Trowell for the wife.

Bruce Blair QC, Professor Rebecca Bailey-Harris and Martin Wood for the husband.

Held, dismissing the applications, that mistake of law was not a factor which would vitiate a consent order for ancillary relief ab initio; that, although a judicial decision developing the law could constitute a supervening event sufficient to necessitate the setting aside of a final order in such proceedings, the four essential conditions laid down in Barder v Barder [1988] AC 20 still had to be met; and that, since neither the element of unforeseeability required of a supervening event nor the reasonable promptness of application to set the order aside was present, those conditions were not met.

LANDLORD AND TENANT

Assignment of lease or underletting - letters marked and 'subject to licence' indicating 'consent in principle' to assignment of lease subject to completion of licence and to reasonable conditions constituting valid consent - purchaser not entitled to rescind contract

Aubergine Enterprises Ltd v Lakewood International Ltd: CA (Lords Justice Auld, Ward and Robert Walker): 25 February 2002

The assignee agreed a contract for the assignment of a lease incorporating the Standard Conditions of Sale, 3rd edition, subject to the assignor obtaining the prior consent of the landlord, with liberty to rescind the contract if the consent was not obtained three days before the completion date.

Both assignor and assignee were companies incorporated in the British Virgin Islands.

In a letter written by the landlord's solicitors about nine days before the completion date marked 'subject to licence' they confirmed the landlord's consent 'in principle to the proposed assignment' subject to the parties executing an engrossed licence and conditions, and to the assignee executing a rent deposit deed and an 'authorised' guarantee agreement and confirming that the execution clause in the deed conformed with the laws of British Virgin Islands and the companies' constitutions.

On the completion date the buyers brought an action seeking a declaration that it had validly rescinded the contract for the seller's failure to obtain a valid consent.

The buyer appealed against the dismissal of its action.

Elizabeth Weaver (instructed by Fladgate Fielder) for the buyer.

Michael Pryor (instructed by Beveridge Milton) for the vendor.

Held, dismissing the appeal (Lord Justice Ward dissenting), that notwithstanding that the letter of consent written nine days prior to the completion date was marked 'subject to licence' and 'in principle' its legal consequence was to constitute a formal and valid consent because it contained reasonable terms for the compliance by the buyer and the seller to complete the assignment; and that, accordingly, the buyer was not entitled to rescind the contract.

LAWYERS

Solicitor - intervention costs - defaulting solicitor entitled to claim detailed assessment of intervention agent's invoices

Pine v Law Society: CA (Sir Andrew Morritt, V-C, Lords Justice Robert Walker and Rix): 20 February 2002

The claimant was a solicitor whose practice was the subject of an intervention by the Law Society.

The intervention agent, himself a solicitor, submitted invoices to the Law Society and the claimant applied for a detailed assessment of those invoices under section 71 of the Solicitors Act 1974.

The Law Society applied to strike out the application.

The judge refused, holding - among other things - that the invoices were solicitor's bills.

The Law Society appealed.

Timothy Dutton QC (instructed by Wright Son & Pepper) for the Law Society; Jeremy Morgan (instructed by Irwin Mitchell, Sheffield) for the claimant.

Held, dismissing the appeal, that, applying the test in Allen v Aldridge (1844) 5 Beav 401:

l The business was connected with the profession of a solicitor;

l The solicitor was employed because he was a solicitor; and,

l The solicitor would not have been appointed if he had not been a solicitor or the relationship of solicitor and client had not subsisted between him and his employer, and that therefore the bills submitted to the Law Society were 'solicitor's bills' for the purposes of section 70(1); that the purpose of section 71 was to confer on a person with a secondary liability for an agent's intervention costs a right comparable to that possessed by the person primarily liable; that section 71 was of general application; that paragraph 13 of schedule 1 merely created a liability by the mechanism of a debt and that, accordingly, its terms did not exclude from the ambit of section 71 solicitor's bills for services rendered in an intervention.

(WLR)

REVENUE

Value added tax - escort agency business - lawful business giving rise to liability to pay value added tax

Commissioners of Customs & Excise v Polok and Another: ChD (Mr Justice Jacob): 19 February 2002

The two respondents ran an escort agency business.

The VAT tribunal found that this business was unlawful and that the couple did not therefore have to pay VAT.

The commissioners appealed.

Melanie Hall (instructed by the solicitor for HM Customs & Excise) for the appellants; the respondents were not represented.

Held, allowing the appeal, that the respondents' business did not fall within the narrow rules which allowed moral scruple by a paradox to reward criminality by exempting it from taxation; that the respondents' business was lawful since what they did was to provide the time of their escorts; that that was an autonomous service from the activities of the escorts and their customers; that it was similar to Staatssecretaris van Financin v Coffeshop 'Siberi' vof Case C-158/98 [1999] ECR I-3971 in which the supply of tables which were used for the sale of drugs was separable from the actual sale of drugs; and that, accordingly, since the business was lawful the respondents were liable to pay VAT.

SOCIAL SECURITY

Invalid care allowance - severely disabled person in hospital - carer's entitlement ceasing on termination of disabled person's attendance allowance

Pridding v Secretary of State for Work and Pensions: CA (Lords Justice Ward, Laws and Keene): 4 February 2002

The claimant looked after his elderly mother, who received attendance allowance, for more than 35 hours per week, and so qualified under section 70(2) of the Social Security Contributions and Benefits Act 1992, as amended, for invalid care allowance.

Upon her admission to hospital the claimant's mother was entitled to attendance allowance only for the first 28 days of her stay.

That affected the claimant's entitlement to invalid care allowance but he failed to inform his social security office.

The secretary of state sought to recover the invalid care allowance overpaid once the circumstances became known.

The claimant appealed to the social security appeal tribunal, disputing the amount of the sum overpaid.

The Social Security Commissioner, on appeal from the tribunal, held that the claimant was entitled to invalid care allowance for 12 weeks after his mother was admitted to hospital.

The secretary of state appealed.

David Forsdick (instructed by the solicitor, Department of Work and Pensions) for the secretary of state.

Richard Drabble QC (instructed by Sarah Clarke) for the claimant.

Held, allowing the appeal, that a carer who looked after a severely disabled person and met the conditions in section 70 of the 1992 Act was entitled to receive invalid care allowance only so long as the severely disabled person was in receipt either of attendance allowance or disability living allowance; that once the disabled person's entitlement to attendance allowance ceased, 28 days after admission to hospital, the carer's entitlement to invalid care allowance also ceased; and that the deeming provisions in regulation 4(2) of the Social Security (Invalid Care Allowance) Regulations 1976 did not extend that period.

STATUTE

Statutory power to amend future statutes by subordinate legislation - not impliedly repealed by later statute - European Communities Act 1972 constitutional statute not susceptible to implied repeal

Thoburn v Sunderland City Council; Hunt v Hackney London Borough Council; Harman and Another v Cornwall County Council; Collins v Sutton London Borough Council: QBD (Lord Justice Laws and Mr Justice Crane): 18 February 2002

The first four defendants, who were food traders, were convicted summarily of offences under weights and measures and price-marking legislation in respect of the use of imperial measures for the purpose of trade.

The fifth defendant's appeal against conditions imposed upon the renewal of his street trading licence, prohibiting the use of imperial measures, was dismissed by the justices.

The defendants appealed by way of case stated on the grounds that a prohibition, introduced by subordinate legislation pursuant to powers under section 2(2) of the European Communities Act 1972, on the continued use of imperial and metric measures for purposes of trade without preference of one over the other, was unlawful because the powers contained in section 2(2) had been impliedly partially repealed by section 1 of the Weights and Measures Act 1985.

Michael Shrimpton and Helen Jefferson (instructed by McKenzie Bell, Sunderland; Percy Short & Cuthbert; and Sproulls, Bodmin) for the first four defendants.

Quinton Richards (instructed by Pegram Heron, Heathfield) for the fifth defendant.

Eleanor Sharpston QC and Philip Moser (instructed by the director of administration, Sunderland City Council, Sunderland) for Sunderland City Council.

Simon Butler (instructed by the director of legal services, Hackney London Borough Council and county solicitor, Cornwall County Council, Truro) for Hackney London Borough Council and Cornwall County Council.

Fiona Darroch (instructed by the head of legal services, Sutton London Borough Council) for Sutton London Borough Council.

Held, dismissing the appeals, that there was no inconsistency between section 1 of the 1985 Act and section 2(2) of the 1972 Act, and so section 2(2) could not have been by implication partially repealed by the 1985 Act; that generally there was no inconsistency between a provision conferring a power to amend future legislation and the terms of any such future legislation; that all the specific rights and obligations which EU law created were by the 1972 Act incorporated into domestic law and ranked supreme; and that the 1972 Act could not be impliedly repealed, not by reason of a rule of EU law but by virtue of the common law of England which recognised the 1972 Act as a constitutional statute.

(WLR)

TRUSTS

Land granted for purpose of establishing church school - statutory reverter on termination of original purpose - identity of revertee to be determined as if land never granted away

Rector of Wrington v Jenkinson and others: ChD (Mr Justice Etherton): 26 February 2002

A landowner granted certain land pursuant to the School Sites Act 1841 for the purpose of establishing a church school.

Section 2 of the Act established a right of reverter upon termination of the original purpose.

By his will the landowner devised his fee simple rights to his great-nephew for life with remainder over; his residuary estate was devised to an alternate line.

By a subsequent contract the great-nephew sold to a company all the land of which he was tenant for life.

The company was later dissolved.

The school subsequently closed and the site was sold.

The Crown having indicated that it was willing to vest in the defendants as beneficial owners of the company's shares any rights it had in the proceeds of sale as a result of the company's dissolution, the defendants claimed that, but for the dissolution, the beneficial entitlement to the proceeds would have vested in the company.

The trustee of the proceeds applied for directions concerning their beneficial ownership.

Christopher Nugee QC (instructed by Gould & Swayne, Glastonbury) for the trustee.

Thomas Baxendale (instructed by Thring Townsend, Bath) for the defendants.

Held, that on a true construction of section 2 of the 1841 Act, which created a statutory fiction, persons entitled to the land immediately following the reverter were to be traced on the hypothesis that the land had never been conveyed under the Act; and that, consequently, the estate company, as successor to the grantor's fee simple rights, would have been beneficially entitled to the proceeds of sale of the school site but for its dissolution, and the beneficial entitlement was presently vested in the Crown as bona vacantia.