Law reports

CRIMINAL

Road traffic - accused suspected of drink driving found in possession of tablet - no obligation on constable to obtain medical opinion before deciding whether to require breath specimen

Steadman v Director of Public Prosecutions: QBD (Lord Justice Kennedy and Mr Justice Keith): 15 April 2002

The defendant was arrested for driving with excess alcohol.

At the police station, he was found to be in possession of a tablet; he stated that he took sleeping tablets, had not taken those or any drug and did not suffer from any illness or medical problems.

His subsequent breath specimens proved positive and he was charged with driving with excess alcohol.Section 7(3)(a) of the Road Traffic Act 1988 provided that a constable could not require a blood or urine specimen unless he had reasonable cause to believe that for medical reasons a breath specimen could not be provided or should not be required.

The defendant challenged the admissibility in evidence of the analysis of his breath specimen, arguing that his possession of the tablet and assertion that he took sleeping tablets had obliged the constable to make further enquiries about the tablet and whether medical reasons existed for not requesting breath.

The justices admitted the breath evidence and convicted the defendant.

He appealed by way of case stated.

Gary Rutter (instructed by Andrew Keenan & Co) for the defendant.

Simon Wickens (instructed by Crown Prosecution Service West Kent, Maidstone) for the prosecutor.Held, dismissing the appeal, that there was no requirement that a constable who was told that an accused took tablets should seek a medical opinion before taking a sample of breath under section 7(3) of the 1988 Act, and nothing in section 7(3)(a) suggested otherwise; that if Parliament had intended otherwise it would have said so as it had in section 7(4); and that nothing in the facts known to the constable at the time could have given him reasonable cause to believe that a medical reason existed for not requiring a breath specimen.

EMPLOYMENT

Appeal from employment tribunal's rejection of claim for unfair dismissal - no overt point in notice of appeal on adequacy of tribunal's reasons - EAT not obliged to offer appellant point on adequacy of reasons - EAT having no power to remit case to tribunal to clarify its reasons

Tran v Greenwich Vietnam Community Project: CA (Lords Justice Brooke, Sedley and Arden): 25 April 2002

The claimant brought unfair dismissal proceedings against his former employer, which were dismissed.

He sought the tribunal's extended reasons and appealed to the EAT but not overtly on the adequacy of those reasons.

The EAT refused his appeal.

Martin Westgate (instructed by Ole Hansen & Partners) for Mr Tran; Martin Fodder (instructed by the Bar pro bono unit) for the project.

Held, dismissing the appeal, that the EAT faced with an appeal notice drawn by an experienced lay representative which took no overt point on the adequacy of a tribunal's extended reasons, could, but was not obliged to, offer an appellant the point; that if the point was taken the EAT could adjourn for the respondent to consider it; that otherwise the EAT could deal with the written grounds of appeal as they were; that (Lord Justice Sedley dissenting) the EAT had no power under section 35 of the Employment Appeal Tribunals Act 1996 to remit the case to the tribunal to clarify its reasons prior to a further hearing of the appeal since that power of remission could not be used simply to make what would be an interim order; and that since the EAT had treated the reasons as doing what they purported to do, to explain the tribunal's conclusions, the issue of adequacy could not be raised.

EQUITY

Relief from forfeiture of finance leases of video equipment - court ordering sale of leased equipment by receiver - court having jurisdiction to grant relief in respect of sale proceeds

On Demand Information plc and another v Michael Gerson (Finance) plc: HL (Lord Nicholls of Birkenhead, Lord Browne-Wilkinson, Lord Hobhouse of Woodborough, Lord Millett and Lord Scott of Foscote):18 April 2002

The defendants granted the claimants four finance leases of equipment for a 36-month primary period at a substantial rent, by the end of which the defendants had recouped the cost of the equipment together with interest and profit.

Thereafter, the claimant could continue the leases for 12-month periods for a small annual payment.

After the end of the primary period the claimant could, after giving notice, sell the equipment to an unconnected third party and retain 95% of the proceeds by way of rebate of rentals.

Under the leases, the appointment of a receiver would constitute a repudiatory breach.

When the claimants went into administrative receivership, the defendants gave notice terminating the leases.

The primary period of two leases had expired, a third was within a few weeks of expiry, and the fourth had three months of its primary period to run.

The claimants sought relief from forfeiture.

Because the claimants' business could only be sold as a going concern together with the equipment, the receiver obtained an interim order for the sale of the equipment, with the proceeds to be paid into an escrow account, before the claimants' claim could be heard.

The deputy judge held that the court had no jurisdiction to grant the claimants relief from forfeiture after the leased asset had been sold.

The Court of Appeal [2001] 1 WLR 155 upheld that decision.

The claimants appealed.

Fidelis Oditah (instructed by Walker Morris, Leeds) for the claimants.

Sir Roy Goode QC and Hugh Tomlinson (instructed by Royds Treadwell) for the defendants.

Held, allowing the appeal, that Rules of the Supreme Court order 29, rule 4 gave power to order sale, only if the property in question either formed the subject matter of the proceedings in which the order was made or was property as to which a question arose in those proceedings; that the court's purpose in exercising the power to order sale was to avoid the injustice which would otherwise result by the property becoming worthless or significantly reduced in value by the time the proceedings or question were determined; that the conversion of the property into money effected by the sale was therefore intended not to prejudice the parties' rights but to preserve their value; that, since relief from forfeiture was merely a means to an end, where the lessee would have been entitled to such relief immediately before the sale and the only reason the court could not grant it was that the equipment had since been sold pursuant to a court order which was not intended to affect the parties' rights, effect should be given to those rights by making whatever order in relation to the proceeds of sale best reflected them; and that, since at the date of the writ relief from forfeiture had been the appropriate remedy for securing commercially valuable rights, an appropriate order would be made to secure those rights in the proceeds of sale (WLR)

HOUSING

Council tenant making arrangement for rent to be paid while in prison - council taking possession of flat for non-payment of rent - not obliged to consider arrange-ment to pay rent in deciding whether tenant intentionally homeless on release

Stewart v London Borough of Lambeth: CA (Lords Justice Peter Gibson, Jonathan Parker and Longmore): 26 April 2002

The applicant had been a local authority tenant since 1983.

In 1998, he was convicted and sentenced to five years' imprisonment for drugs offences.

He arranged for his sister to pay the rent on his flat while in prison.

In 1999, the authority obtained a possession order for unpaid rent and executed a possession warrant.

In 2000, he was released and applied to the council as homeless.

It held that he was intentionally homeless.

The judge refused his application for judicial review.

Jan Luba QC and Sean Pettit (instructed by Collinsons & Co) for the applicant; Andrew Arden QC and Alastair Redpath-Stevens (instructed by the solicitor, London Borough of Lambeth) for the authority.

Held, dismissing the appeal, that Parliament had left to a local authority the decision as to whether or not a person presenting for accommodation was intentionally homeless because of a deliberate act or omission; that where an authority had decided that the act which caused an applicant's intentional homelessness was his criminal activity, the natural consequence of which was imprisonment and eviction for non-payment of rent, it was not obliged to look at an interim arrangement made by the applicant for payment of his rent while in prison, which had not been honoured, to decide whether or not that constituted an omission on his part which was not deliberate and which caused him to lose his accommodation unintentionally; that, accordingly, the failure of the arrangement was not causative of the applicant's homelessness and the appeal would be dismissed.

NUISANCE

Occupier's liability - unpredicted violent storm washing soil and stone from farmland - obstruction of highway - occupier of farm not liable to highway authority

Devon County Council v Webber and Another; CA (Lord Justice Keene and Mr Justice Sumner): 19 April 2002

The defendants owned several fields of a farm adjoining a highway.

In 1989 and 1994, heavy rain washed soil and stones from fields A and B on to the highway.

The defendants ceased using these fields for arable farming after the claimants had served a notice under section 151 of the Highways Act 1980 to take steps to prevent further washouts from them.

In 1999, a violent rainstorm, an event expected once in about 200 years, washed soil and debris from fields C and D, obstructing the highway.

The county court held the defendants liable to pay the costs of removing the detritus under section 150 (4) of the 1980 Act.

The defendants appealed.

Benjamin Browne QC and Michael Brabin (instructed by Hugh James Ford Simey, Exeter) for the defendants; Robin Tolson QC and Michael Berkley (instructed by County Council Solicitor) for the claimants.

Held, allowing the appeal, that the defendants were not liable for the effects of an unpredicted violent storm of an extreme level which was described to take place once in two centuries; that the concept of reasonable care depended on a common sense approach, and that the storm in 1999 could be foreseen neither by the defendants nor by the claimants, who had clearly failed to serve any notice in 1994 under section 151 in relation to fields C and D when they served such a notice in relation to field A; and that, accordingly, the obstruction to the highway was not caused or contributed by the failure of the defendants to take reasonable care to prevent the rain fall erosion.

SOCIAL SERVICES

Destitute asylum seekers - care needs arising from disabilities not in themselves requiring provision of residential accommodation - local authority under duty to provide accommodation despite refusal of National Asylum Support Service accommodation offer

R (Mani) v Lambeth London Borough Council; R (Tasci) v Enfield London Borough Council; R (J) v Enfield London Borough Council: QBD (Mr Justice Wilson): 18 April 2002

The claimants, destitute asylum seekers, suffered physical disabilities which gave rise to a need for care and attention falling short of requiring provision of residential accommodation.

Two claimants who had been offered accommodation by the National Asylum Support Service (NASS) refused it as unsuitable.

Section 21 of the National Assistance Act 1948 required local authorities to provide residential accommodation to persons subject to immigration control, whom by reason of illness or disability were in need of care and attention not otherwise available and which did not arise solely because of destitution.

The local authorities refused to provide such accommodation.

The claimants sought judicial review.

Duran Seddon (instructed by Pierce Glynn) for Mani.

Stephen Knafler (instructed by Pierce Glynn) Tasci.

Stephen Knafler (instructed by Birnberg Peirce & Partners) for J.

Nigel Giffin (instructed by Sternberg Reed Taylor & Gill) for Lambeth.

Bryan McGuire (instructed by Head of Legal Services, Enfield London Borough Council) for Enfield Council.

Held, granting the applications, that the requisite need under section 21 was for care and attention 'not otherwise available' to a person, whatever the nature of that care and attention; that by section 21(1A) entitlement to assistance arose if the need for care and attention was to a material extent made more acute by some circumstance other than destitution, and since 'assistance' had to mean 'the provision of residential accommodation' the claimants were entitled to it; and that, since by regulations 6(3) and 23(1)(3) of the Asylum Support Regulations 2000 local authorities considering destitution for the purpose of section 21(1A) had to ignore any provision or possible provision of asylum support, NASS support could not eliminate the local authority's section 21 duty.

TORT

Ship owner's breach of fishing vessel safety regulations - no civil liability to deceased crew members - crew members not employees so shipowner entitled to limit any liability

Todd and others v Adams and another: CA (Lords Justice Thorpe and Mance and Mr Justice Neuberger): 18 April 2002

The claimants, suing as widows and dependents of crew members who had lost their lives when the defendants' fishing vessel had capsized, claimed that the defendants were liable in damages on the basis that they had breached rule 16 of the Fishing (Safety Provisions) Rules 1975 (SI 1975/330).

On the trial of two preliminary issues, the judge ruled that section181 of the Merchant Shipping Act 1995, under which the rules took effect, was not intended to give rise to a civil cause of action in damages, but that the defendants, if liable, were not entitled to limit their liability to the claimants in accordance with the Convention on Limitation of Liability for Maritime Claims 1976, as scheduled to the 1995 Act, because the deceased had been employed under contracts of service within the meaning of the exception provided by section185(4)(a).

The claimants appealed on the first issue and the defendants on the second.

Elizabeth Blackburn QC and Michael Davey (instructed by Foot Anstey Sargent, Plymouth) for the claimants.

Michael Nolan (instructed by Nash & Co, Plymouth) for the defendants.

Held, dismissing the appeal but allowing the cross-appeal, that section 181, which provided for criminal sanctions against owners under subsection (5), was not intended to give rise to a civil cause of action for damages; and that despite the level of control exercised by the defendant owners, the crew members, who shared losses as well as gains, were to be treated as self-employed and not employees for the purpose of the exception under section185(4)(a).

Clarification

The beginning of the law report for Khan v Falvey (see [2002] Gazette, 10 May, 30) should have read: 'Solicitor allegedly negligent in failing to take procedural steps in actions which were struck out for want of prosecution - decision solely on preliminary issue of limitation.' We apologise if our report gave the impression that Mr Falvey had been found negligent.

No finding was made on the issue of liability, and negligence was strenuously denied.