Law reports

ADMINISTRATIVE

Duty to give reasons - statutory body deciding between competing applications for capital grants - decision not amenable to further elucidation

R (The Asha Foundation) v Millennium Commission: QBD (Mr Justice Lightman sitting as an additional judge):14 May 2002

The Millennium Commission refused the claimant's application for a capital grant.The claimant sought judicial review on the grounds that the commission, in making the decision to refuse the application, had misdirected itself, having failed to have regard to the statutory considerations and the commission's criteria and guidelines, and had failed in its duty to give adequate reasons.

Michael Fordham (instructed by Sheridans) for the claimant; Nathalie Lieven (instructed by the Treasury Solicitor) for the commission.

Held, dismissing the application, that there was an inextricable link between the decision making process and the requirement to give reasons; that when considering the claimant's application under section 41 of the National Lottery Act 1993 the commission had not been adjudicating on a question of eligibility or fact but had been comparing and evaluating the multitude of relevant considerations and criteria to be taken into account in selecting the successful applicants for grants, which involved an exercise of subjective judgment not readily amenable to further elucidation; that the only legitimate expectation created by a statement in the commission's information to applicants, that it would explain to losing applicants why they had lost, was an expectation that the commission would communicate the actual reasons for its decision, which in the case of the claimant was that it preferred other applications to the claimant's; and that, in all the circumstances, the commission had not misdirected itself and had given adequate reasons for its decision.

COSTS

Claimant unsuccessful in libel action ordered to pay defendant's costs - defendant seeking costs orders against persons who had funded claimant to bring action - pure funders not liable in costs

Hamilton v Fayed (Sir Robert McAlpine Ltd and ors, respondents as to costs): CA (Lord Justices Simon Brown and Chadwick and Lady Justice Hale): 17 May 2002

The claimant was unsuccessful in his libel action against the defendant and a costs order was made against him.

The defendant applied under section 51 of the Supreme Court Act 1981 to recover his costs from persons who had contributed sums to a fighting fund for the libel action on the basis that, if successful, the sums would be returned, otherwise not.

The funders were joined as parties for the purposes of costs only.

The judge refused the applications.

The defendant appealed.

Elizabeth Gloster QC, James Price QC and Lawrence Harris (instructed by DJ Freeman) for the defendant; Sir Sydney Kentridge QC and Simon Salzedo (instructed by Mischon de Reya and Russell Jones & Walker) for the first to sixth respondents as to costs; Philip Heslop QC and Orlando Fraser (instructed by Peters & Peters) for the seventh respondent as to costs; John Wardell (instructed by Forsters) for the eighth respondent as to costs.

The claimant and the ninth respondent as to costs did not appear and were not represented.

Held, dismissing the appeal, that competing public interests were in play and the underlying policy was that an unfunded party's ability to recover his costs must yield to the funded party's right of access to the courts to litigate the dispute in the first place; that, consequently, in the interests of justice, fairness to the successful defendant did not generally require a pure funder, who provided financial support towards litigation costs of an impecunious claimant but had no personal interest in the litigation, did not stand to benefit from it, was not funding it as a matter of business and in no way sought to control its course, to contribute to the costs which the defendant was unable to recover from the claimant; and that in the circumstances the defendant was not entitled to costs against any of the respondents.

(WLR)

CRIMINAL

Conspiracy to pervert course of public justice - criminal investigation following false allegation of attack sufficient to constitute 'course of justice' - ambit of common law offence sufficiently clear

R v Cotter and ors: CA (Lord Justice Latham, Mr Justice Goldring and Judge Mettyear): 10 May 2002

Following a false allegation of attack, three defendants were convicted in the Crown Court of conspiracy to pervert the course of public justice.

The defendants appealed against conviction on the grounds, among other things, that a criminal investigation, having followed such a false allegation, was not sufficient to justify charges of perverting the course of public justice, and that the ambit of that offence was so uncertain as to infringe article 7 of the European Convention on Human Rights.

John Saunders QC and Simon Davis (assigned by the Registrar of Criminal Appeals) for the first defendant; John Saunders QC (assigned by the Registrar of Criminal Appeals) for the second defendant.

Philip Bown and Timothy Sapwell (appearing pro bono) for the third defendant; Timothy Raggatt QC and Andrew Jackson (instructed by the Crown Prosecution Service, West Midlands) for the Crown.

Held, dismissing the appeals, that the 'course of public justice' included the process of criminal investigation, and that was the case whether an allegation was capable of identifying individuals or not; and that there was no infringement of article 7 because the manner in which the law had been elucidated judicially since 1891 accorded with the process envisaged within SW v United Kingdom (1995) 21 EHRR.

ECCLESIASTICAL

Faculty - powers of consistory court - no power to interfere with financial decisions of parochial church council

In re St Catherine's Church, Drayton; Bath and Wells Cons Ct (Briden Ch); 15 May 2002

The petitioners sought authority for the installation of a new ringing floor and other works in the bell tower of the church.

The petition was opposed on the grounds that the project was an expensive luxury which the parish could ill afford given its limited resources and the ongoing commitment to maintaining the fabric of the church.

The petition was dealt with on written representations.

Held, granting the faculty, that in the management of its finances the parochial church council was answerable to the parishioners, who through their votes governed the lay composition of the council; that in addition, there was a mandatory requirement for an auditor acting as watchdog in relation to the finances at the council's disposal; that the consistory court would not usurp these functions and would not interfere with decisions reached by the parochial church councils in accordance with their rules of procedure as to how parochial funds were to be applied; however, in considering whether or not to grant the faculty, the chancellor or archdeacon would want to know whether funds for the intended project were available; and that furthermore there might be exceptional cases where the proposed manner of funding would affect the decision whether to grant a faculty; and that, since the petitioners had demonstrated that the council had sufficient funds at its disposal to fund the re-ordering of the tower and since the petition had sufficient merit, a faculty would be granted for the re-ordering, subject to conditions.

LOCAL GOVERNMENT

Defendant prosecuted for failing to comply with enforcement notice - prosecution withdrawn on compromise reached between parties' solicitors - solicitor having no ostensible authority to agree to withdraw notice itself and council not estopped from enforcing its requirements by civil action

South Bucks District Council v Flanagan and another: CA (Lord Justice Keene and Mr Justice Sumner): 18 May 2002

The council brought criminal proceedings against the defendant for failing to comply with an enforcement notice requiring removal of vehicles and scrap metal from the land occupied by him.

The parties' solicitors reached a compromise whereby the council would withdraw the prosecution and the defendant would withdraw his appeal against an amenity notice served on him under section 215 of the Town and Country Planning Act 1990 requiring removal of several items and materials from the land.

Subsequently, the judge in the county court held the council estopped by the agreement from enforcing the requirements of the enforcement notice.

Mr Justice Harrison allowed the council's appeal.

The defendant appealed.

David Lamming (instructed by Martin Murray & Associates, Slough) for the defendant; Philip Kolvin (instructed by Sharpe Pritchard) for the council.

Held, dismissing the appeal, that, although the solicitor instructed to conduct the criminal proceedings had authority to compromise them, he had no ostensible authority to reach a compromise involving withdrawal of the enforcement notice itself; that any expectation by the defendant that the solicitor had ostensible authority to bind the council could not be regarded as a legitimate expectation; and that the private law doctrine of estoppel no longer had a place in public law in relation to planning.

MENTAL DISORDER

Tribunal deciding to direct restricted patient's conditional discharge but deferring direction for arrangements to be made - conditions impossible to meet - tribunal having jurisdiction to review its own decision

R (H) v Secretary of State for the Home Department and another: CA (Lord Phillips of Worth Matravers MR, Lords Justice Jonathan Parker and Dyson):15 May 2002

A mental health review tribunal ordered the conditional discharge of a restricted patient, on condition that he be supervised by a psychiatrist.

The health authority tried unsuccessfully to find a psychiatrist prepared to supervise him in the community.

His detention continued.

A different tribunal found two years later that the patient was still mentally ill and should be detained for treatment in hospital.

Mr Justice Bell refused his claim for judicial review on the ground that for two years his detention had contravened article 5 of the European Convention on Human Rights.

He appealed.

Tim Owen QC and Aswini Weereratne (instructed by David Mylan Solicitors, Saxmundham) for the patient; Philip Havers QC and Nathalie Lieven (instructed by the Treasury Solicitor and the Solicitor, Department of Health) for the Secretaries of State for the Home Department and for Health; Lisa Giovannetti (instructed by the Treasury Solicitor) for the tribunal; Kristina Stern (instructed by Hempsons) for the Nottinghamshire Healthcare NHS Trust; Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair) for C, another restricted patient.

Held, dismissing the appeal, that, where a tribunal decided to direct the conditional discharge of a restricted patient under section 73(7) of the Mental Health Act 1983 but deferred giving that direction, the decision to direct discharge was provisional and the tribunal remained fully seised of the case; that, if circumstances changed or additional material emerged before the direction was given, the tribunal could reconsider its decision and, where conditions for the conditional discharge proved impossible to implement, the tribunal was required to reconsider and could, where necessary, order the patient's continued detention.

(WLR)

Tribunal deciding to order restricted patient's deferred conditional discharge - relevant report not seen - tribunal able to review decision so no need for fresh referral

R (C) v Secretary of State for the Home Department: CA ( Lord Phillips of Worth Matravers MR, Lords Justice Jonathan Parker and Dyson): 15 May 2002

A restricted patient applied to the mental health review tribunal for a discharge.

While the senior hospital social worker recommended a conditional discharge, the responsible medical officer disagreed.

The tribunal decided to order a conditional discharge.

The conditions included access to a psychiatrist although the doctor and the community social worker considered that the condition should be of supervision by a psychiatrist.

The tribunal did not see the community social worker's report.

On realising that, the community social worker sent the tribunal a copy of her report.

The fact that the report had not been before the tribunal led the secretary of state to refer the case to a fresh tribunal under section 71(1) of the Mental Health Act 1983.

The patient was granted judicial review.

The secretary of state appealed.

Nathalie Lieven (instructed by the Treasury Solicitor) for the secretary of state; Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair) for the patient.

Held, dismissing the appeal, that, where additional material emerged after a mental health review tribunal had decided to direct the conditional discharge of a restricted patient but before the direction had been given, the original tribunal had jurisdiction to reconsider its decision under section 73, following the decision of the Court of Appeal in R (H) v Secretary of State for the Home Department (ante); and that, accordingly, it was not appropriate in those circumstances for the secretary of state to refer the matter back to a fresh tribunal under section 71 of the 1983 Act.

PRACTICE

Legal professional privilege - tax inspector issuing statutory notice requiring disclosure of instructions to and advice from counsel - statutory power not abrogating legal professional privilege

R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax and another: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Scott of Foscote): 16 May 2002

A special commissioner granted an inspector of taxes consent, under section 20(7) of the Taxes Management Act 1970, to the issue of a notice against the applicant bank under section 20(1) (as substituted by section 57(1) of and schedule 6 to the Finance Act 1976 and amended by section142 of the Finance Act 1989) requiring delivery of documents concerning instructions to and advice of counsel regarding a tax avoidance scheme which it had devised.

The bank, which contended that the documents were covered by legal professional privilege, sought judicial review, which was refused by the Queen's Bench Divisional Court [2000] Gazette, 15 December, 37.

The bank's appeal to the Court of Appeal was dismissed [2001] Gazette, 3 May, 45.

It appealed.

David Pannick QC, Giles Goodfellow and Javan Herberg (instructed by Slaughter & May) for the bank; Timothy Brennan QC, Ingrid Simler and Diya Sen Gupta (instructed by Solicitor of Inland Revenue) for the inspector and the special commissioner.

Held, allowing the appeal, that legal professional privilege was a fundamental human right which was not to be excluded save by express words or necessary implication; that section 20(1) of the 1970 Act did not exclude it expressly; and that it was not a necessary implication from the Act as a whole that it was intended to be excluded.

(WLR)