Law reports

CONTRACT

Lease of public house having 'beer tie' - tenant alleging misrepresentation by landlords' pre-contract negotiation that tie would be enforced - no defence to claim for injunction to enforce tie

Inntrepreneur Pub Co (CPC) and another v Sweeney: Ch D

(Mr Justice Park): 27 May 2002

Under an agreement for the lease of a public house, the tenant was required by a 'beer tie' to purchase most of his beer from a particular third party supplier.

The tenant purchased supplies from an alternative source.

The landlords brought an action for an injunction to compel compliance with the beer tie and for damages.

The tenant alleged that the landlords had misrepresented to him in the negotiation prior to the contract that the tie would be released within five years of the commencement of the tenancy and that that gave rise, whether under section 2(1) of the Misrepresentation Act 1967 or at common law, to a defence to the injunction claim.

Kim Lewison QC and Martin Rodger (instructed by Masons) for the landlords; Jonathan Brock QC (instructed by Maitland Walker, Minehead) for the tenant.

Held, giving judgment for the landlords, that, since it was clear from section 2(1) that the only remedy afforded by the section was damages, the section could offer no defence to a claim for injunctive relief; that, since the remedy for negligent misstatement at common law was similarly limited to damages alone, the tenant had no defence to the landlords' application; and that no misrepresentation or misstatement had, in any event, been made out on the facts.

Costs

Indemnity costs - claimant's failure to send letter before action - costs to be assessed on indemnity basis

Phoenix Finance Ltd v Federation International de l'Automobile and others: ChD (Sir Andrew Morritt V-C): 22 May 2002

The claimant's application for interlocutory relief was dismissed and the second and third defendants applied for their costs to be assessed on an indemnity basis on the ground that the claimant failed to send a letter before action or other comparable warning before the proceedings were instituted.

Andrew Hochhauser QC and Monique Allan (instructed by Kingsford Stacey Blackwell) for the claimant; Christopher Carr QC and Michael Sullivan (instructed by Herbert Smith) for the first defendant; Thomas Beazley QC and Adam Lewis (instructed by McDermott Will & Emery) for the second and third defendants.

Held, allowing the application, that in most cases there were pre-action protocols in which it was made clear that in the absence of very good reasons a letter before action or other warning was expected; that although there was no pre-action protocol directly relevant, the whole thrust of the Civil Procedure Rules 1998, and in particular the overriding objective, made it plain that a letter before action was at least as necessary under the new rules as under the old; that it was not necessary for a litigant who sought indemnity costs to show that the conduct complained of had increased his costs; and, that in the circumstances, the claimant's conduct was sufficiently unreasonable to warrant the order sought.

CRIMINAL

Procedure - defendant submitting but refusing to sign defence case statement - Crown Court not having power to require signature

R (Sullivan) v Crown Court at Maidstone: QBD (Lord Justice Kennedy and Mrs Justice Rafferty): 16 May 2002

The Crown Court issued a local practice direction requiring all defence case statements given pursuant to section 5 of the Criminal Procedure and Investigations Act 1996 to be signed by the defendant giving it.

The claimant declined to sign his defence statement on the ground that it disclosed information which might incriminate him in respect of other offences.

The court directed that it would not be accepted without his signature.

The claimant sought judicial review.

James Turner QC (instructed by Clarke Kiernan, Tunbridge Wells) for the claimant; Robin Johnson and Hugh Forgan (instructed by Crown Prosecution Service, Maidstone) for the Crown Prosecution Service as an interested party.

The Crown Court did not appear and was not represented.

Held, granting judicial review, that the jurisdiction of the Crown Court was entirely statutory and there was no express power in the Supreme Court Act 1981 enabling it to require a defence statement to be signed, nor any such power arising from its jurisdiction antecedent to that Act; that the Crown Court's inherent power to regulate its own procedure could not enable it to impose requirements in relation to a defence statement which Parliament had not seen fit to impose and the practice direction was therefore unlawful; but that, if a statement were not signed, it was within the court's power to require the defendant to satisfy the court that, in compliance with section 5 of the 1996 Act, the document tendered really was his defence statement and, if that involved extra costs and there were no good reason for the lack of signature, the court could consider whether those costs should be paid by the defendant or anyone who advised him not to sign.

Restraint and receivership orders - receivers' costs - entitlement to recover from assets controlled

Hughes and others v Customs and Excise Commissioners; R and another v Director of Public Prosecutions; Anderson v Customs and Excise Commissioners: CA (Lords Justices Simon Brown and Laws and Lady Justice Arden):

20 May 2002

In the first two cases, the defendants, who had been charged with criminal offences but had not been convicted, applied to vary restraint and receivership orders made against them under the Criminal Justice Act 1988.

Mr Justice Hooper ruled that the receiver could not use the assets of an unconvicted defendant to meet his costs.

In the third case, the defendant, who had been convicted of a criminal offence, applied to vary similar orders made against him under the Drug Trafficking Act 1994.

Mr Justice Collins ruled that the receiver could only recover his costs out of specified assets which the defendant acknowledged to be his.

The prosecutors appealed.

Andrew Mitchell QC and Barry Gregory (instructed by the Solicitor, Customs & Excise) for the prosecutor in the first case; Graham Brodie (instructed by Martyn Prowel, Cardiff) for the appellant first defendant; Alan Newman QC and Paul Spencer (instructed by Huttons, Cardiff) for the appellant second defendant.

Andrew Mitchell QC and Kennedy Talbot (instructed by Crown Prosecution Service) for the prosecutor in the second case; Nicholas Purnell QC and Alison Pople (instructed by Burton Copeland) for the appellant first defendant; Mukul Chawla QC (instructed by Burton Copeland) for the appellant second defendant.

Andrew Mitchell QC and Fiona Jackson (instructed by the Solicitor, Customs & Excise) for the prosecutor in the third case.

The defendant did not appear and was not represented.

Held, allowing the appeals, that statutory receivers were to be treated precisely as their common law counterparts, save to the extent that the legislation expressly provided otherwise; that the restraint and receivership legislation had previously been correctly applied to allow the receiver, unless and until a confiscation order had been made, to recover his costs from the assets under his control; and that it was important the legislation continued to be operated to strip criminals of their ill-gotten gains, although it was important too that the court kept a close control over those it appointed to act as receivers on its behalf.

Education

Exclusion of pupil by head teacher - appeal to statutory appeal panel - whether panel's discretion was fettered by guidance issued by secretary of state - panel's decision not unfair

Regina (S) v Brent London Borough and Others; Regina (T) v Brent London Borough and Others; Regina (P) v Oxfordshire County Council's Exclusion Appeals Panel and Another: CA (Lords Justice Schiemann and Sedley and Mr Justice Charles): 17 May 2002

Three pupils were excluded by their respective head teachers for violent or threatening behaviour.

In each case, exclusion was upheld by the relevant governing body and their appeals were dismissed by an appeal panel.

On appeal to the High Court it was contended in each case that the appeal panel had treated its discretion as being fettered by paragraphs 17 and 18 of guidance issued by the secretary of state in circular 10/99.

The appeals were dismissed, in the case of S by Mr Justice Scott Baker [2001] EWCH Admin 384; [2002] ELR 57; in the case of T by Mr Justice Newman [2002] LGR 132, and in the case of P by Mr Justice Turner [2001] EWCH Admin 30; [2001] ELR 631.

The pupils appealed to the Court of Appeal.

Murray Hunt (instructed by Ashok Patel & Co) for S and T; David Wolfe (instructed by Levenes) for P; Peter Oldham (instructed by the London Borough of Brent) in S; Oliver Hyams (instructed by the London Borough of Brent) in T; Nigel Giffin (instructed by Oxfordshire County Council) in P; Clive Lewis (instructed by the Treasury Solicitor) for the Secretary of State for Education and Skills.

Held, dismissing the appeals, that sections 67, 68 and schedule 18 to the School Standards and Framework Act 1998 required appeal panels to act independently and to decide impartially, but to do so in the light of the secretary of state's guidance; that if the statute was not capable of being construed so as to achieve a fair result it would supersede the common law requirement of fairness, but since the coming into force of section 3 of the Human Rights Act 1998, the court has been obliged to read the statute to comply with article 6 of the European Convention on Human Rights; that appeal panels had to keep the guidance issued by the secretary of state in mind, but guidance was not direction and did not lay down rules to be strictly adhered to; that the guidance had to promote the statutory purposes and, since 22 October 2000, had to be convention-compliant; that the function of the local education authority was not to press for a particular conclusion in relation to a particular pupil bearing in mind that an appeal was from the decision of the head teacher and the discipline committee and no right of appeal was provided for the London Education Authority against their decision even if it thought that the head teacher should not have excluded a pupil; and that the decision of the appeal panel in each case had applied the correct principles.

LAND

Charging order - property home to children - court not required to consider interests of children before enforcing order

Wells v Pickering: ChD (Mr David Oliver QC, sitting as deputy High Court judge): 17 May 2002

A charging order in favour of the claimant was granted over the defendant's property, which was occupied by her together with her three children.

The master granted the claimant's application to enforce the charging order and for an order for sale of the property.

The defendant appealed on the ground that the master, in the exercise of his discretion, had erred in not giving the interests of her children greater weight on the basis of the Rules of the Supreme Court, order 88, rule 5A(2)(f) which provided that, where the claimant claimed possession, the witness statement in support of a claim to enforce a charging order by sale of the property charged had to give particulars of every person who was in possession of the property, to the knowledge of the claimant.

Sarah Jones (instructed by Brutton & Co, Fareham) for the claimant; David White (instructed by Anderson Macrae LLP) for the defendant.

Held, dismissing the appeal, that order 88, rule 5A(2)(f), the purpose of which was to ensure that the court had notice of any competing proprietary interests before enforcing a charging order, did not extend to requiring the consideration of the welfare and needs of affected minors; that the fact that there was no specific provision in the rule protecting the interests of minors led to the conclusion that the ordinary rule prevailed when, as in the instant case, sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 did not apply; and that that result was consistent with the policy that creditors were entitled to be paid debts due to them.

PRISONERS

Prisoner released on licence - secretary of state recalling to custody - inappropriate to seek judicial review on Wednesbury grounds

R (Biggs) v Secretary of State for the Home Department: QBD (Mr Justice Richards): 20 May 2002

The claimant, who had a personality disorder and a history of alcohol abuse, was sentenced to 18 months' imprisonment for two offences of assault occasioning actual bodily harm.

Having spent 14 months on remand he was released immediately on licence under section 33(1) of the Criminal Justice Act 1991.

On the same day, the secretary of state recalled him to prison under section 39(2).

Ten days later, he was again released when it was realised that, since he had served more than three-quarters of his sentence on remand, he had been entitled to be released on licence under section 33(3) immediately on recall.

The secretary of state conceded that his imprisonment following that recall was unlawful.

After five days the secretary of state again recalled him to prison under section 39(2) on the ground that it appeared expedient in the public interest.

By section 33A(3) he was not entitled to be released on licence following a second recall.

The claimant sought judicial review of, among other things, the second recall decision on the ground that it was Wednesbury unreasonable.

Philip Sinclair (instructed by Green & Co, Maidstone) for the claimant; Clive Lewis (instructed by the Treasury Solicitor) for the secretary of state.

Held, dismissing the claim, that since section 39(2) provided for an emergency recall procedure involving the exercise of an extremely broad discretion and since in determining the reasonableness of the decision account would be taken of the existence of the post-recall procedure under section 39(4)(5) which enabled the merits of the decision and the balance of hardship and risk to be properly reviewed by the Parole Board with the benefit of full information, the court would be slow indeed to conclude that no reasonable decision-maker could have decided to recall a person in respect of whom grounds for concern had been expressed; that the Parole Board's procedures were almost as quick as those of the court; and that, accordingly, although the court had jurisdiction to entertain the claim, it would generally be inappropriate to challenge on Wednesbury grounds a decision to recall under section 39(2).

PROFESSIONS

Solicitor - Law Society appointing accountant to investigating solicitor's books - no private law action lying against Law Society for negligence in conduct of investigation

Miller v Law Society: ChD (Mr Geoffrey Vos QC sitting as deputy High Court judge): 14 May 2002

An investigating accountant appointed by the Council of the Law Society under rule 27 of the Solicitors' Accounting Rules 1991 to inspect a solicitor's books of account concluded that, although the solicitor had not been dishonest, there was a client account shortage.

The compliance and supervision committee of the Office for the Supervision of Solicitors, acting under powers delegated by the council, intervened in his practice by vesting the practice's money in the council, to be held on trust under the Solicitors Act 1974, and suspending his practising certificate.

The solicitor failed to challenge the intervention in the High Court.

The Solicitors' Disciplinary Tribunal found the accountant's allegations proved and ordered the solicitor to pay the costs of and incidental to the investigation.

The solicitor applied to the county court to set aside a statutory demand for 35,131.35 served on him by the council, on the ground that he had a triable counterclaim for damages which exceeded the value of the demand because, had the investigation not had been conducted negligently, the intervention would not have occurred and he would have continued to derive profit from his practice until the determination by the tribunal.

The district judge dismissed the application.

The solicitor appealed.

Michael Norman (instructed by Birchall Blackburn, Manchester) for the solicitor; Deepak Nambisan (instructed by Wright Son & Pepper) for the council.

Held, dismissing the appeal, that a private law action could not intrude into the exclusively public field of solicitors' disciplinary processes; that, since an accountant's investigation under rule 27 of the 1991 rules was an inseparable part of the disciplinary process laid down by the 1974 Act and could lead either to intervention or to proceedings before the tribunal, a solicitor was confined to the statutory rights of appeal to the High Court under the Act in relation to the conduct of such an investigation; and that, accordingly, a solicitor could not bring a private law claim in negligence against the council in that respect.

Revenue

Value added tax - supply of goods or services - listed building - outbuilding within curtilage - conversion of outbuilding zero-rated

Zielinski Baker & Partners Ltd v Commissioners of Customs and Excise: CA (Lords Justice Aldous, Tuckey and Rix): 17 May 2002

Owners of a house were granted planning permission to construct an indoor swimming pool and convert an outbuilding into changing and games facilities.

They contended that since the house was a listed building and the outbuilding fell within its curtilage such that it was protected under the Planning (Listed Buildings and Conservation Areas) Act 1990, the cost of the work on the outbuilding was zero-rated having regard to section 30 of the Value Added Tax Act 1994 (as amended).

That submission was successful before the Birmingham VAT and Duties Tribunal on 4 July 2000 but failed on appeal to Mr Justice Etherton on 9 May 2001.

The owners appealed.

John Walters QC and Philip Brunt (instructed by Wallace & Partners) for the owners; Paul Lasok QC and Paul Harris (instructed by the Solicitor, Customs and Excise) for the commissioners.

Held, allowing the appeal by majority (Lord Justice Aldous dissenting) that section 30(2) of the 1994 Act provided that goods or services were zero-rated if they were of a description specified in schedule 8 which contained, among other things, group 6 relating to protected buildings; that by definition, group 6 treated such a structure as 'part of a building'; that the concept of 'an approved alteration of a protected building' supported the view that the building with which the court was concerned was the main building, not the secondary building; and that, accordingly, the cost of the conversion of the outbuilding was zero-rated.

SOCIAL SECURITY

British pensioner resident abroad - exclusion from annual uprating of state retirement pension - no breach of convention rights

R (Carson) v Secretary of State for Work and Pensions: QBD

(Mr Justice Stanley Burnton):

22 May 2002

The claimant was a British pensioner resident in South Africa.

While she remained in South Africa, the amount of her total British state retirement pension remained frozen irrespective of inflation-based uprating of pensions for those who lived in Great Britain and certain other countries.

The claimant sought judicial review.

Richard Drabble QC, Helen Mountfield and Murray Hunt (instructed by Thomas Eggar Church Adams) for the claimant; James Eadie and Khawar Qureshi (instructed by the Solicitor, Department of Health) for the secretary of state; Thomas de la Mare (instructed by Lovells) for the Commonwealth of Australia (intervening).

Held, dismissing the claim, that UK legislation had never conferred a right on the claimant to the uprating of her pension and, since she had never had such a right, there could be no question of her having been deprived of it, and so there was no unlawful interference with her property rights; that, although the application of residence as a criterion for the differential treatment of citizens was a ground within the scope of article 14 of the European Convention on Human Rights, the comparison between the claimant and the chosen comparators was complex and could not simply be restricted to a comparison of the sterling amounts of their UK pensions, and, since it was difficult to distinguish the claimant's case from a series of unsuccessful applications to the European Commission on Human Rights, her claim under article 14 failed; that, in considering whether there was an objective and reasonable justification for any discrimination the court was concerned with two areas of government, the allocation of resources and foreign relations, in which it was clear that the judicial arm had to give the greatest deference to the legislature and the elected executive; and that accordingly, the decision whether to pay uprated pensions was political, not judicial, and was for Parliament.

TOWN PLANNING

Planning application - local planning authority refusing objectors oral hearing before granting application - secretary of state not obliged to call in application to prevent breach of convention rights

R (Adlard and others) v Secretary of State for the Environment, Transport and the Regions: CA (Lords Justice Simon Brown, Mummery and Dyson): 17 May 2002

The local planning authority resolved to grant a planning application without according the objectors an oral hearing.

The secretary of state declined the objectors' request to call in the application under section 77 of the Town and Country Planning Act 1990 for his own determination.

Mr Justice Collins refused the objectors' application for judicial review.

The objectors appealed.

Robert McCracken and Gregory Jones (instructed by Richard Buxton, Cambridge) for the objectors; John Howell QC and James Maurici (instructed by the Treasury Solicitor) for the secretary of state; Keith Lindblom QC and Russell Harris (instructed by Director of Legal Services, Hammersmith and Fulham London Borough Council) for the local planning authority; Timothy Straker QC and Andrew Tabachnik (instructed by Linklaters & Alliance) for the planning applicant.

Held, dismissing the appeal, that the objectors' entitlement 'to a fair and public hearing ...by an independent and impartial tribunal', under article 6(1) of the European Convention on Human Rights, was satisfied by the English planning system, even though it allowed a local planning authority to grant planning permission without having afforded objectors any opportunity of an oral hearing; that the statutory scheme, as a whole, was compliant with article 6 since the remedy of judicial review amply enabled the court to correct any injustice in an individual case; and that the secretary of state had no duty to exercise his section 77 power so as to prevent a violation of article 6.

(WLR)