Law reports

Law reports

COPYRIGHT

Additional damages for infringement - not to include exemplary element - recklessness by infringer sufficient to found award

Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd: ChD (Mr Justice Pumfrey): 14 March 2002

The claimant brought an action for copyright infringement committed by the defendants when they published a photograph in the claimant's copyright ownership and sought additional damages under section 97(2) of the Copyright, Design and Patents Act 1988.

James Clifford (instructed by Charles Russell) for the claimant.

Richard Spearman QC (instructed by Farrer & Co) for the defendants.

Held, awarding additional damages, that a purely punitive, or exemplary, award of damages was not appropriate under section 97(2), given that the 1988 Act established criminal offences in the case of knowing infringement and given that the infringer might, in the case of concurrent copyright, be exposed to successive actions by the owners of the different copyrights each seeking punishment in respect of their interest; but that, section 97(2), being drafted in the widest terms, permitted an aggravation of an award of damages on a basis far wider than the factors admitted as aggravation at common law; that carelessness sufficiently serious to amount to an attitude of 'couldn't care less' was capable of aggravating the infringement and of founding such an award; that recklessness could be equated to deliberation in that respect; and that, in all the circumstances, an award of additional damages under section 97(2) in the sum of 10,000 was appropriate.

COSTS

Right to apply for public funding - committal proceedings delayed by defendant's lack of representation - defendant entitled to refuse offer by claimants' solicitors to fund defence

Berry Trade Ltd and another v Moussavi and others: CA (Lords Justice Potter, Mummery and Arden): 21 March 2002

Worldwide search and seizure orders were made against the first defendant in commercial litigation.

The claimants applied to commit the first defendant for alleged breaches of the orders.

When the funds he had provided were exhausted, the first defendant's solicitors came off the record.

He applied unsuccessfully for public funding, reapplying after he was adjudicated bankrupt.

He was again refused but the matter remained under consideration within the Legal Services Commission.

After several adjournments because the first defendant was unrepresented, the claimants' solicitors offered to pay for his representation by his chosen solicitors and counsel so the committal application could proceed.

The first defendant refused.

The judge refused a further adjournment.

The first defendant appealed.

The first defendant in person.

Ian Croxford QC and Philip Marshall (instructed by Ince & Co) for the claimants.

Andrew Bodnar at the invitation of the court.

Held, allowing the appeal, that a litigant who wished to instruct counsel and solicitors to defend committal proceedings but had insufficient means had a right to apply for public funding which the court should respect; that the litigant should be given an effective right to apply for public funding which outweighed other considerations; that that approach was consistent with article 6 of the European Convention on Human Rights; but that, once a sufficient period had been granted, if legal assistance still had not been obtained the interests of other parties should be given greater weight.

ECCLESIASTICAL

Faculty - commemorative plaque in church - no necessity for those commemorated to have been regular worshippers

In re St Mary's Church, Wimbledon: Const Ct (Charles George QC, Ch): 17 March 2002

The petitioner wished to have a plaque installed in the church to commemorate his parents, who had been famous tennis players.

The Parochial Church Council (PCC) refused permission on the grounds that there was little space left in the church and that they had a policy of only allowing memorial tablets for people who had had a close and longstanding association with worshipping in the church.

The petitioner therefore applied to the chancellor for a faculty to install the plaque.

The matter was determined by written representations.

Held, granting a faculty, that the petitioner's mother's achievements were exceptional and that her achievements, coupled with those of her husband, could be regarded as being of general public interest; that there was sufficient room in the church for the plaque; that the Church of England was a national established church and there was no reason for the PCC to restrict commemoration within the church to those who had worshipped in that church during their lifetime; that in order to curtail the number of those whose commemoration might be sought normally some local connection would be necessary; that the fact that the petitioner's parent's triumphs had been local ones, at the nearby All England Club achieved that local connection; that furthermore the petitioner's mother's ashes had been interred in the garden of remembrance at the church; and that, accordingly, a faculty would be granted subject to conditions.

EMPLOYMENT

Contract of employment - variation of term by elected shop steward reducing holiday payment - shop steward having authority to bind employees to their detriment

Harris v Richard Lawson Autologistics Ltd: CA (Lords Justice Kennedy and Mantell and Sir Swinton Thomas): 14 March 2002

The claimant was a driver employed by the defendant company and a member of the Transport and General Workers Union, which in February 1989 entered into a closed shop agreement with the defendant under which the defendant agreed, among other things, to recognise the shop steward elected by the defendant's employees to speak on their behalf.

In August 1996, while the defendant was having financial difficulties, a shop steward - who had been elected twice in two years by the employees - and the defendant company's finance director negotiated to reduce the employees' holiday payments and signed an agreement two months later to that effect.

In 1997 the claimant volunteered for redundancy and claimed full holiday payment contending that he was not bound by the 1996 agreement which had been signed without his personal authority, but his claim was dismissed.

The claimant appealed.

Franklin Evans (instructed by The Parry Sharratts Partnership, Canterbury) for the claimant; James Ramsden (instructed by Brachers, Maidstone) for the defendant.

Held, dismissing the appeal, that since the shop steward had been duly elected by the defendant's employees to represent them - including the claimant - and their interests, he had ostensible authority to bind the employees; that the defendant was entitled to assume that he had authority to vary the employment contract to bind the employees and to act on the conduct of shop steward; and that, accordingly, the claimant was bound by the 1996 agreement even though it operated to the detriment of the claimant.

EUROPEAN COMMUNITY

Football banning orders restricting free movement of EU national - restriction lawful and proportionate

Gough and Another v Chief Constable of Derbyshire: CA (Lord Phillips of Worth Matravers MR, Lords Justice Judge and Carnwath): 20 March 2002

The chief constable issued complaints in the magistrates court against G and S under section 14B of the Football Spectators Act 1989, as inserted by the Football (Disorder) Act 2000.

The deputy district judge was satisfied, applying the ordinary civil standard, that the requirements for an order under section 14B(4)(a) and (b) were made out and he made football banning orders against G and S for two years.

The orders, among other things, prevented G and S from attending certain domestic football matches.

The enforcing authority also required them, under section 19, to surrender their passports at specified times to prevent them from attending prescribed matches abroad.

The Queen's Bench Divisional Court dismissed their appeals by case stated (see [2001] 3 WLR 1392) and G and S appealed.

Rhodri Thompson and Arnondo Chakrabarti (instructed by Timms, Derby) for G and S; Philip Havers QC and Simon Davenport (instructed by Weightmans, Leicester) for the Chief Constable of Derbyshire; David Pannick QC and Mark Hoskins (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department, intervening.

Held, dismissing the appeals, that the 1989 Act, as amended, was compatible with European Community law and, if the scheme of the Act was properly applied, orders made under section 14B and restrictions on foreign travel imposed under section 19 would meet the requirements of proportionality; that section 14B proceedings were civil proceedings but the standard of proof applicable was practically indistinguishable from the criminal standard; and that although the deputy district judge had applied the wrong standard of proof, the orders were justified in the circumstances.

(WLR)

HUMAN RIGHTS

Inquiry - serious misconduct by doctors - minister for health holding inquiry - whether presumption to be held in public - right to freedom of expression not engaged

R (Howard and Another) v Secretary of State for Health: QBD (Mr Justice Scott Baker): 15 March 2002

The two claimants had been subjected to serious medical mistreatment by their doctors.

The Secretary of State for

Health decided to hold an inquiry under section 2 of the National Health Service Act 1977 into how, over many years, the doctors had been able to practise while indecently assaulting numerous patients and committing serious medical errors resulting in unnecessary deaths.The claimants applied for judicial review of the decision not to hold the inquiry in public, that is, allow the media and members of the public to attend.

Edward Faulks QC and Stephen Cragg (instructed by Harman & Harman, Canterbury) for Ms Howard; Richard Lissack QC and Nicholas Bowen (instructed by Alexander Harris, Altrincham) for the second claimant Ms Wright-Hogeland.

Philip Sales and Jonathan Swift (instructed by solicitor, Department of Health) for the Secretary of State for Health.

Mr Justice Scott Baker said that there was no presumption as to whether an inquiry held under section 2 of the 1977 Act should be in public or not and that decision was for the secretary of state, to be taken in the light of all the relevant considerations of the particular case; that since the claimants and all interested parties were entitled to be present throughout the inquiry and were not prevented from receiving or imparting information by any means available to them, their assertion of a right to hold it in public was an assertion of a right of access to information, not a right of freedom of expression, and therefore article 10 of the European Convention on Human Rights was not engaged; and that, accordingly, the secretary of state's decision was not irrational and the applications would be dismissed.

JUDICIAL REVIEW

Inquiry into foot and mouth disease outbreak - secretary of state deciding to hold inquiry in private - not unlawful or in breach of convention rights

R (Persey and others) v Secretary of State for Environment, Food and Rural Affairs and another: QBD (Lord Justice Simon Brown and Mr Justice Scott Baker):15 March 2002

Following an outbreak of foot and mouth disease, the secretary of state set up three separate independent inquiries to receive evidence, for the most part in private.

The lessons learned inquiry, conducted by Dr Iain Anderson, was directed to consider the handling of the outbreak so as to learn lessons for the future.

The claimants, who were variously farmers, veterinary surgeons, hoteliers and others affected by the outbreak, claimed judicial review of the decision to hear evidence in private.

Various media organisations were joined as interveners

Richard Lissack QC, Andrew Spink and Robert-Jan Temmink (instructed by Clarke Willmott & Clarke, Taunton) for the first claimant.

Stephen Smith QC and David Warner (instructed by Burges Salmon, Bristol) for the second claimant.

Richard Gordon QC, Nicholas Bowen and Galina Ward (instructed by Gabb & Co, Crickhowell) for the third applicant.

Desmond Browne QC and Mark Warby (instructed by Reynolds Porter Chamberlain) for the interveners.

The Attorney-General, Lord Goldsmith QC, Philip Sales, Paul Harris and Kassie Smith (instructed by solicitor, Department of Environment, Food and Rural Affairs) for the secretary of state.

Dr Anderson, as an interested party, did not appear but made written submissions.

Held, dismissing the claims, that there was no presumption that such an inquiry would be held in public; and that article 10 of the European Convention on Human Rights accorded freedom of expression, not access to information, and so imposed no positive obligation on government to provide, in addition to existing means of communication, an open forum to achieve the yet wider dissemination of views; and that, accordingly, article 10 was not engaged by a decision to hold a closed public inquiry.

TAXATION

Capital gains tax - shares acquired by employee on exercise of option granted by employer - acquisition costs deemed to be market value at time of acquisition

Mansworth (Inspector of Taxes) v Jelley: ChD (Mr Justice Lightman): 20 March 2002

Between 1983 and 1985 the taxpayer, then not resident in the UK, was granted options by his employer to purchase its shares at the market price.

In 1989 and 1991, when within the charge to tax on capital gains, he exercised the options, promptly selling the shares thus acquired.

He was assessed to capital gains tax on the basis that the base value of the shares was to be the market value of the options when granted (treated as nil) plus the actual consideration paid on the exercise of the options.

His appeal against the assessments was allowed by a special commissioner, who held that there were no gains, the base value being computed by taking the market value of the shares at the time of acquisition.

The Crown appealed.

Timothy Brennan QC (instructed by the Solicitor of Inland Revenue) for the Crown.

Michael Sherry and Louise Rippon (instructed by BP Collins, Gerrards Cross) for the taxpayer.

Held, dismissing the appeal, that, on a true construction of the statutory provisions which were now in sections 17, 28, 38 and 144 of the Taxation of Chargeable Gains Act 1992, where a taxpayer acquired options by reason of his employment 'otherwise than by way of bargain made at arm's length' the acquisition costs of the shares was to be taken to be a sum equal to their market value at the date of exercise of the options; and that, accordingly, there were no gains on which capital gains tax could be assessed.

TORT

Occupiers' liability - trespasser injured diving in lake despite warning signs - occupier liable for injuries

Tomlinson v Congleton Borough Council and Another: CA (Lords Justices Ward, Sedley and Longmore): 14 March 2002

The claimant, aged 18, went to the council's public park.

Ignoring warning signs, he went into a lake in the park and suffered injuries from making a shallow dive.

The council knew that in hot weather the lake acted as a magnet to the public, its sandy beaches inviting swimming, and it planned to carry out landscaping to deter swimmers who habitually disregarded warning signs.

Mr Justice Jack held that the council was not in breach of its duty of care and dismissed the claimant's action.

The claimant appealed.

WTS Braithwaite QC and Gerard Martin (instructed by Paul Ross & Co, Manchester) for the claimant.

RD Machell QC (instructed by James Chapman & Co, Manchester) for the council.

Held, allowing the appeal (Lord Justice Longmore dissenting), that the claimant accepted that on going into the water he had become a trespasser; that section 1 of the Occupiers Liability Act 1984 applied to define when, as occupier, the council owed him a duty of care; that the council's warnings over several years were known to be ineffective to prevent swimming and the attendant risk of injury; that the circumstances were such as to impose a duty on the council to carry out its proposed landscaping so as effectively to deter swimming; and that, accordingly, the council was in breach of the duty owed to the claimant to take reasonable care to see that he did not suffer injury at the park from swimming in the lake.

TRADE

Passing off - radio station using manipulated image of racing driver on promotional brochure - distribution of image actionable passing off based on false endorsement

Irvine and another v Talksport Ltd: Ch D (Mr Justice Laddie): 13 March 2002

The defendant, which operated a radio station, purchased a photograph of the first claimant, a Formula 1 racing driver, holding a mobile telephone.

The defendant manipulated the photograph by replacing the image of the telephone with that of a portable radio to which the words 'Talk Radio' had been added.

A brochure bearing the manipulated image was then distributed as part of a special promotional campaign.

The first claimant brought proceedings claiming that the distribution of the brochure was an actionable passing off, based on the unauthorised endorsement of a product or service (the radio station).

The defendant contended that the first claimant was attempting to enforce a broad and novel right which did not fall within the scope of passing off.

Lindsay Lane (instructed by Fladgate Fielder) for the claimants.

Michael Hicks (instructed by Olswang) for the defendant.

Held, giving judgment for the claimants, that there was nothing which prevented an action for passing off succeeding in a false endorsement case; but that to succeed the burden on the claimant included the need to prove, first, that at the time of the acts complained of he had a significant reputation or goodwill; and, second that the actions of the defendant had given rise to a false message, which would have been understood by a not insignificant section of his market, that his goods or services had been endorsed, recommended or were approved of by the claimant; and that both those factors were proved in the instant case.