Law reports

CRIMINAL

Crown seeking to adduce fresh evidence on appeal - purpose to provide additional evidence of guilt not to rebut fresh evidence introduced in support of appeal - admissible if in interests of justice

R v Hanratty (decd): CA (Lord Woolf CJ, Lord Justice Mantell and Mr Justice Leveson): 10 May 2002

The deceased was convicted of murder and hanged in 1962.

The Criminal Cases Review Commission referred the case to the Court of Appeal on grounds relating to failures by the prosecution to disclose material to the defence, conduct of the identification parade, the conduct of interviews and inadequacies in the summing up.

The Crown, in seeking to uphold the conviction, sought to rely on fresh evidence in the form of DNA profiles which it contended confirmed the deceased's guilt.

The DNA evidence did not directly address the grounds of appeal and its admissibility and relevance were challenged on the basis that, since section 23(2) of the Criminal Appeal Act 1995 contained a mandatory requirement in respect of fresh evidence before the Court of Appeal and the requirement of section 23(2)(b) in particular was only likely to be complied with by an appellant and not the prosecution, the Crown could only place fresh evidence before the court if it were to be used to evaluate or rebut fresh evidence adduced in support of the appeal.

Michael Mansfield QC and Henry Blaxland QC (instructed by Bindman & Partners) for the deceased.

Nigel Sweeney QC, Mark Dennis and David Perry (instructed by Crown Prosecution Service headquarters) for the Crown.

Held, dismissing the appeal, that section 23(2) was subordinate to section 23(1); that it was section 23(1) which conferred a general discretion on the court to be exercised in the interests of justice; that the overriding consideration for the court in deciding whether fresh evidence should be admitted on the hearing of an appeal was whether the evidence would assist the court to achieve justice; that justice could equally be achieved by upholding a conviction if it were safe or setting it aside if it were unsafe; that, accordingly, the DNA evidence would be admitted; and that that evidence established beyond doubt that the deceased was guilty.

(WLR)

EMPLOYMENT

Employee resigning following change of working conditions following transfer of undertaking - employee claiming constructive dismissal - necessary to establish fundamental breach of contract by employer

Rossiter v Pendragon Plc; Clarke v Air Foyle Ltd: CA (Lords Justice Peter Gibson, Jonathan Parker and Sir Christopher Slade): 10 May 2002

In two conjoined appeals by employers from decisions of the Employment Appeal Tribunal the issue arose whether an employee, whose working conditions had changed to his detriment following a transfer of undertaking, could establish constructive dismissal when the acts of the employer were not repudiatory or in breach of contract.

Ian Wright (instructed by the solicitor, Retail Motor Industry Federation Ltd) for the employer in the first appeal.

The employee in the first appeal did not appear and was not represented.

Paul Nicholls (instructed by Hewitson Becke Shaw, Cambridge) for the employer in the second appeal.

Richard Clayton QC (instructed by AJ Hows & Associates, Harlington) for the employee in the second appeal.

Held, allowing the appeals, that regulation 5(5) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 did not create a new right under the 1981 regulations but preserved the rights arising apart from those regulations; that the only such right was that of an employee to resign when faced with repudiation of his contract by the employer; that an employee could not claim constructive dismissal on a transfer of undertaking where his working conditions had substantially changed to his detriment without showing a fundamental breach of contract by the employer; that section 95(1)(c) of the Employment Rights Act 1996 did not enable an employee to claim constructive dismissal where there was no repudiatory conduct by the employer; and that the test in Western Excavating (ECC) Ltd v Sharp [1978] QB 761 still applied as much to a case involving a transfer of undertaking as where there was no transfer.

EQUITY AND SUCCESSION

Husband procuring wife's execution of legal charge by equitable fraud - fact of equitable fraud sufficient to found wife's right as against husband to set aside charge - not necessary to establish that but for fraud wife would not have executed charge

UCB Corporate Services Ltd v Williams; CA (Lords Justice Peter Gibson, Kay and Jonathan Parker); 2 May 2002

The claimant, a mortgagee under a legal charge, successfully brought an action against six defendants, all members of one family, relating to a residential property occupied by the sixth defendant and her daughter, seeking payment of sums due jointly and severally and possession of the property.

The sixth defendant appealed against the order alleging that the third defendant, her husband, had procured her execution of the legal charge by equitable fraud.

Geraint Jones QC (instructed by David W Harris & Co, Pontypridd) for the sixth defendant; James Barker (instructed by Speechly Bircham) for the claimant.

Held, allowing the appeal in part and remitting the case for adjudication of the claimant's subrogation claim, that where a judge found that a wife's execution of a legal charge was procured by her husband's equitable fraud (in terms of both undue influence and misrepresentation) that fact was sufficient to found a right for the wife as against the husband to have the charge set aside; that it was not necessary for her to establish that, without the equitable fraud, she would not have executed the charge; that, accordingly, the wife had a right as against her husband and the claimant was fixed with constructive notice of that right to have the charge set aside; and that in the absence of subrogation, the claimant's claim against the wife must fail.

HOUSING

Council determining housing benefit overpaid in respect of tenant - landlord to whom benefit paid directly excluded from review board hearing - landlord as person affected by determination entitled to attend hearing

Godwin v Rossendale Borough Council: CA (Lords Justice Peter Gibson, Chadwick and Clarke): 3 May 2002

The defendant council determined that housing benefit in the sum of 1,926.72 had been overpaid to the claimant landlord in respect of a tenant who had not in fact been in occupation of the relevant premises at the relevant time.

The tenant exercised his right to a hearing before the council's housing benefit review board, but the landlord was excluded from that hearing.

The determination was upheld and the council recovered the overpayment from the landlord by setting off benefit payable to him in respect of another tenant in the premises.

The landlord brought an action to recover the sum allegedly overpaid.

The judge dismissed the claim.

The landlord appealed on the ground that the council had failed to follow correct procedure.

Paul Stagg (instructed by MP Jones & Co, Plymouth) for the landlord.

John Gregory (instructed by the borough solicitor, Rossendale Borough Council, Rawtenstall) for the council.

Held, dismissing the appeal, that where a landlord was the person to whom housing benefit was paid on behalf of a tenant he was, in reality, the person affected by a council's decision that an overpayment had been made in respect of that tenant, and it was regrettable that he should have been excluded from the tenant's hearing before the review board; that once the council had determined that overpayment of housing benefit would be recovered against the landlord and had notified him he had a right to a hearing before the review board; that since the landlord was affected by both hearings they could properly be held together; and that, since the landlord did not challenge the determination and since there had been no procedural irregularity in the way the overpayment had been deducted by withholding payment due in respect of one of the landlord's other tenants, the judge's decision would be upheld.

IMMIGRATION

Application for asylum - fear of persecution if returned to home state - extortion and violence threatened by individuals only for gain - not persecution for convention reason qualifying for refugee status

Montoya v Secretary of State for the Home Department: CA (Lords Justice Schiemann, May and Jonathan Parker): 9 May 2002

The claimant, a member of a wealthy Columbian family whose life had been threatened by Marxist groups if he did not pay them 10,000,000 pesos per month, sought asylum in the UK on the basis that he was a 'refugee' as defined by the UN Convention and Protocol relating to Status of Refugees (1951) (Cmnd 9197) and (1967) (Cmnd 3906).

The Immigration Appeal Tribunal held that he was not such a refugee and rejected his claim.

He appealed.

Manjit Gill QC and Christa Fielden (instructed by Selva & Co) for the claimant.

Michael Fordham (instructed by the Treasury Solicitor) for the secretary of state.

Held, dismissing the appeal, that even if the claimant, as a landowner, was a member of a particular social group and had a well-founded fear of persecution if he were returned to Columbia, the tribunal had nevertheless been entitled to conclude that he would be persecuted merely because the persecutors wanted his money, rather than for his political beliefs or for his membership of a group; and that, accordingly, he would not be persecuted for a convention reason.

LANDLORD AND TENANT

Business tenancy - 'eggshell tenancy' - application for new tenancy refused on ground of landlord's intention to demolish or reconstruct

Pumperninks of Piccadilly Ltd v Land Securities plc and others: CA (Lords Justice Simon Brown and Chadwick and Mr Justice Charles): 10 May 2002

The landlords demised the premises of a shop to the tenant but excluded from those premises any load-bearing parts of the building of which they formed part.

The tenant applied for the grant of a new tenancy.

The judge in the Central London County Court upheld the landlords' opposition to the grant of a new tenancy on the ground, specified in section 30(1)(f) of the Landlord and Tenant Act 1954, that they intended to demolish or reconstruct the building and they could not reasonably do so without obtaining possession of the holding.

The tenant appealed.

Kim Lewison QC (instructed by Samuel Phillips & Co) for the tenant.

Michael Driscoll QC (instructed by Nabarro Nathanson) for the landlords.

Held, dismissing the appeal, that the demise had created an 'eggshell tenancy' because it was a demise of the internal skin of the part of the building occupied by the tenant and did not include any load-bearing parts of the building; that the overall effect of the works intended by the landlords was that the eggshell - and thus the material enclosing the demised premises - would be removed and what was the tenant's shop would become part of an open space which would have to be fitted out by the new occupier to provide a floor, a ceiling, plastering and such internal partitions as might be appropriate; and that it was clear that the landlords could not reasonably carry out the intended works without obtaining possession in the sense of putting an end to the tenant's right to legal possession under the new lease.

Rent review - service of counter-notice on landlord's agent by recorded delivery - deemed served day after posting even though recipient not present

WX Investments Ltd v Begg: ChD (Mr Justice Patten): 13 May 2002

The landlord served a rent review notice on the tenant.

The final date for service of a counter-notice was 6 October 1997.

The tenant's agent sent a counter-notice by recorded delivery on 24 September 1997.

The Post Office was unable to effect delivery and left a P739 'while you were out' card at the landlord's agent's address on 30 September.

The landlord's agent replied to the card requesting delivery on 10 October.

The landlord sent a demand for the increased rent on the basis that no valid counter-notice had been served.

The tenant refused to pay.

The landlord issued proceedings to which the tenant joined his agent as third party.

The judge in the county court found in favour of the tenant.

The landlord appealed.

Mark Loveday (instructed by Vizard Oldham Brooke Blain) for the landlord.

Charles King (instructed by Freeman Box) for the tenant.

Peter Clark (instructed by Plexus Law) for the tenant's agent.

Held, dismissing the appeal, that under section 196(4) of the Law of Property Act 1925 a letter, which had been sent by recorded delivery, was deemed to be served at the time at which it would in the ordinary course be delivered; that the counter-notice was therefore deemed to have been delivered to the landlord's agent on 25 September 1997, even though there had in fact been no one present to sign for the recorded delivery; and that, accordingly, the counter-notice had been validly served.

TAXATION

Capital gains tax - roll-over relief - cost of acquiring new asset now deemed reduced by amount of grant made from public funds

Wardhaugh (Inspector of Taxes) v Penrith Rugby Union Football Club: ChD (Mr Justice Ferris): 10 May 2002

A football club raised money from selling land to build a new clubhouse.

The sale gave rise to a capital gain.

The club received a grant of 409,000 from the Sports Council to assist in financing the building work.

General commissioners allowed its appeal against the refusal by a tax inspector to allow in full its claim for roll-over relief under section 152 of the Taxation of Chargeable Gains Act 1992, rejecting the Crown's case that section 50 of the Act applied to restrict the relief.

The Crown appealed.

David Rees (instructed by the Solicitor, Inland Revenue) for the Crown.

Andrew Hitchmough (instructed by Arnison & Co, Penrith) for the club.

Held, dismissing the appeal, that although section 50 of the 1992 Act exempted from the computation of liability for the tax 'expenditure reimbursed out of public funds,' section 152 made provision for deferring liability on transfers of business assets; and that for purposes of roll-over relief the cost to the club of acquiring its new asset was not to be treated as reduced by the amount of the grant.