Law reports

COMMERCIAL

Policy insuring protection and indemnity club against liability of members to third parties for personal injury or death of persons boarding vessels - club having insurable interest - reinsurers not entitled to avoid liability on basis of gaming, wagering or over-recovery

Feasey v Sun Life Assurance Co of Canada and another; Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey: QBD (Mr Justice Langley):

17 May 2002

A protection and indemnity club, which provided cover to its members for their liabilities for personal injury or death of persons occurring on or in relation to vessels entered with it, entered into a 'master lineslip' policy with underwriters to insure against any liability of a member to third parties.

The underwriters concluded reinsurance contracts with two reinsurers in respect of its liabilities to the club.

The reinsurers ceased to pay claims made by the underwriters alleging, among other things, that the club had no insurable interest to protect by the policy and thus was in breach of section 1 of the Life Assurance Act 1774; and that, if it had an insurable interest, it should recover no more than the true value of that interest, under section 3 of the Act, and should be precluded from over-recovery as a result of other reinsurances available to the club.

The underwriters sought a declaration that the policy was valid and the clubs sought recovery of the unpaid claims.

Julian Flaux QC, David Lord and Caroline Laband (instructed by Lovells) for the underwriters.

Dominic Kendrick QC and Simon Kerr (instructed by Clifford Chance) for the first reinsurer.

Dominic Kendrick QC, Simon Kerr and Adam Fenton (instructed by Barlow Lyde & Gilbert) for the second reinsurer.

Anthony Boswood QC and Richard Handyside (instructed by Richards Butler) for the club.

Held, granting the declaration, that the club had a significant contingent economic interest in the lives and wellbeing of persons on vessels and the policy did not amount to gaming or wagering under section 1; that in approaching section 3 the court should confine itself to a consideration of whether the insurable interest it found to exist under section 1 had in fact been insured in a manner which was or was not fairly to be characterised as gaming or wagering at the time of contract; that the basis for any valuation, including the existence of other insurances, might be potentially material but were not conclusive; and that accordingly, the unpaid sums should be paid to the club.

CONFLICT OF LAWS

Registration of foreign judgment - Dutch judgment obtained without proper opportunity to defend - contrary to public policy to enforce

Maronier v Larmer: CA (Lord Phillips of Worth Matravers MR, Lords Justice Robert Walker and Clarke): 29 May 2002

In 1984, the claimant brought an action for negligent dental treatment against the defendant in Rotterdam.

The defendant entered a defence.

The claimant obtained a stay in 1986.

The action proceeded in 1998 after the defendant had moved to England to work as a dentist.

His solicitors came off the record.

The claimant was awarded damages with interest and the judgment was registered in England.

The defendant, who did not know of the reactivated proceedings until the claimant informed him after the expiry of the time for appealing, successfully applied to set aside registration of the judgment in England.

The claimant appealed.

Peter Ralls QC and Gary Pryce (instructed by Howard Kennedy) for the claimant; John Foy QC and Laura Elfield (instructed by Bartlett Gooding & Weelen, Shepton Mallet) for the defendant.

Held, dismissing the appeal, that, although a fundamental objective of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters was to facilitate the free movement of judgments by providing a simple, rapid enforcement procedure, the court could refuse to register a foreign judgment under article 27(1) where it was contrary to public policy to do so and under article 27(2) where the defendant had not been given a fair chance to defend himself; and that it was contrary to public policy to enforce a foreign judgment obtained in a member state against a defendant who had manifestly not received a fair trial as required by article 6 of the European Convention on Human Rights.

CRIMINAL

Council officer accessing personal data held on computer to issue summons for non-payment of council tax - officer unaware that council's registration to hold and use data for that purpose had expired - council criminally liable

Information Commissioner v Islington London Borough Council: QBD (Lord Justice Kennedy and Mrs Justice Hallett): 24 May 2002

A council officer accessed personal data held on a computer in order to issue a summons for the non-payment of council tax.

Unbeknown to the officer, the council's registration under the Data Protection Act 1984 to use data for that purpose had expired.

The council was charged with using the data for an unauthorised purpose, contrary to section 5 of the Act, which prohibited the unregistered holding and use of personal data, in that it had knowingly or recklessly used the personal data for the collection of taxes for which registration had expired.

The deputy district judge dismissed the charges.

The Information Commissioner appealed.

John Riley (instructed by Chebsey & Co, Beaconsfield) for the commissioner; Owen Davies QC and Maya Sikand (instructed by the solicitor, Islington London Borough Council) for the council.

Held, allowing the appeal, that the knowledge and actions of the directing minds of a corporate body must be taken together with the actions of those to whom administrative functions were delegated; that it would be virtually impossible to hold a large organisation to account for the unlawful use of data and effectively defeat the purpose of the section if the prosecution were required to prove that the person sending out the notice had the requisite knowledge; and that, accordingly, the council as an ordinary prudent 'person', through its officers, would or should have known that any use of the data which it held, in the absence of renewal of its registration, would be in contravention of the Act.

Criminal damage to genetically modified maize crop - value of crop relevant to mode of trial - district judge entitled to hold charges triable either way because crop not available in open market so value unclear

R (Director of Public Prosecutions) v Prestatyn Magistrates' Court: QBD (Lord Justice Sedley and Mr Justice Gage): 28 May 2002

The accused were charged with criminal damage to a crop of genetically modified maize.

By virtue of section 22 of and paragraph 1 of schedule 2 to the Magistrates' Court Act 1980 they were entitled to be tried by jury only if the value of the damaged crop was not clearly less than 5,000.

The evidence showed that the maize had been grown as a development measure with large investment costs; that it was artificial to look as if it were ordinary maize; and that the value of the damage to the crop could not be easily quantified.

The district judge decided that the charges should be treated as triable either way.

The Director of Public Prosecutions sought judicial review.

Linda Knowles (instructed by Crown Prosecution Service, Wrexham) for the Director of Public Prosecutions; Terry Munyard (instructed by Bindman & Partners and Andrew Fitzpatrick, Manchester) for the accused.

Held, dismissing the claim, that since the crop was not marketed it was not clear what the value was; and that, accordingly, the district judge had been justified in concluding that it was unclear as to whether the crop was worth more or less than 5,000 and that the offences were therefore triable either way.

Immigration

Application for asylum - applicant soldier witnessing murders carried out by superiors - fear of persecution by superiors - motivation for persecution not convention reason

Suarez v Secretary of State for the Home Department; CA (Lords Justice Potter and Keene, and Mr Justice Sumner); 22 May 2002

The applicant, who was serving in the Colombian army, was guarding a house when his captain and two sergeants killed an arms dealer through whom they had been selling arms to guerillas.

The captain told the applicant to keep quiet, otherwise he too would be killed.

That same evening in a confrontation with guerillas, the captain and his sergeants shot at the applicant and the applicant fled, fearing for his life and eventually left the country.

In his application for asylum, the applicant contended that he was in fear of persecution and that he would be imprisoned for desertion if he returned to Colombia.

The Secretary of State refused his application and his appeal to the adjudicator and to the Immigration Appeal Tribunal was dismissed.

The applicant appealed.

Manjit Singh Gill QC and James Collins (instructed by Sheikh & Co) for the applicant; Angus McCullough (instructed by Treasury Solicitor) for the Secretary of State.

Held, dismissing the appeal, that while a persecutor might have more than one motivation, it was essential for the applicant to establish that one of the motivations of the persecutor fell within the motivations covered by the Geneva Convention and protocol relating to the status of refugees, namely that the conduct of the persecutor was motivated by the complainant's expression of opinion challenging governmental authority; that since the persecutors had acted for their own ends and were themselves in fear of exposure to higher authority for their actions contrary to instructions from the army, their motivation for persecution did not fall within the convention.

LOCAL GOVERNMENT

Enforcement notice - claim for injunction to secure compliance - factors in exercise of court's discretion

Buckinghamshire County Council v North West Estates plc and others: ChD (Mr Justice Jacob): 31 May 2002

The local planning authority sought injunctive relief in respect of six enforcement notices which it had issued against the defendants in respect of breaches of planning permissions.

The first defendant, who was the owner of the relevant land, resisted the claim on the ground, among other things, that, since the court had to take into account rights under article 8 of the European Convention on Human Rights when deciding whether to exercise its discretion to grant an injunction to enforce compliance with an enforcement notice, regard should be had to the entire planning history of the case.

Benedict Sefi and Stephen Morgan (instructed by Head of Legal Services, Buckinghamshire County Council, Aylesbury) for the claimant.

Keith Lindblom QC and David Park (instructed by Lawrence Graham) for the first defendant.

The second and third defendants, who were no longer occupants of the land, did not appear and were not represented.

Held, granting the applications, that the true construction of an enforcement notice could legitimately involve reading another document which was directly referred to in it; that it was not the role of the court to go back over the planning history to see whether it agreed with it; that when asked to exercise its discretion to grant an injunction to enforce compliance with an enforcement notice, the court would look at all the circumstances; and that, while interference with article 8 rights could suffice to prevent the court exercising its discretion to grant an injunction, mere planning considerations and other points which could have been raised to challenge the notice itself would be insufficient.

NATURAL JUSTICE

Tax appeal to special commissioner - appeal conducted incompetently by chartered accountant - clients not entitled to fresh hearing

Parmar and others (trading as Ace Knitwear) v Woods (Inspector of Taxes): ChD (Mr Justice Lightman): 30 May 2002

The taxpayers brought appeal proceedings before a special commissioner, relating to claims for capital allowances and trading losses.

And the taxpayers were represented by a professionally qualified accountant, who had acted as their auditor and in 1991 had formulated insurance claims following a fire at the taxpayers' knitwear factory.

Failing to adduce essential evidence and advancing wrong arguments before the commissioner, his conduct of the appeal was incompetent.

The commissioner rejected the taxpayers' case and they appealed, claiming that the incompetence of their representative rendered the proceedings unfair so as to entitle them to a fresh hearing.

Jeremy Woolf (instructed by Northen & Lindsey, Leicester) for the taxpayers; David Rees (instructed by the solicitor of Inland Revenue) for the Crown.

Held, refusing to order a fresh hearing but remitting the case for redetermination of one factual issue, that the taxpayers' representative was a chartered accountant, enjoying the statutory privilege of rights of audience as an advocate, thereby warranting his fitness and necessary legal expertise to assume that role; that the commissioner was entitled to assume that the representative understood the relevant procedural rules; that, viewed objectively, justice had been done and seen to have been done; and that the representative's incompetence did not entitle the taxpayers to a fresh hearing but was nevertheless so seriously troubling that his professional body should be informed and invited to take remedial action against him.

ROAD TRAFFIC

Penalty charge notices - disabled motorist parking where not permitted because no appropriate spaces available - parking adjudicator not entitled to take motorist's mitigating circumstances into account and grant absolute discharge from penalty imposed by notice

R (Westminster City Council) v Parking Adjudicator: QBD

(Mr Justice Elias): 22 May 2002

On 11 occasions, a disabled motorist, who could only walk a limited distance and then only with the aid of crutches, parked his car in a place where he knew that parking was not permitted because no other appropriate parking spaces were available.

The Road Traffic Act 1991 imposed fixed penalties for such breaches.

On each occasion, a parking attendant issued a penalty charge notice under section 66.

The charges not having been paid within 28 days, the council issued a 'notice to owner' under paragraph 1 of schedule 6.

The motorist made representations to the council against the notice under paragraph 2(4)(f) on the ground in view of his personal circumstances 'that the penalty charge exceeded the amount applicable in the circumstances of the case'.

The council rejected the representations.

The motorist appealed to a parking adjudicator, who purported to take mitigating circumstances into account in determining the amount payable under paragraph 2(4)(f) and granted an absolute discharge from penalty.

The council sought judicial review.

Timothy Spencer (instructed by Director of Legal Services, Westminster City Council) for the council; Kassie Smith (instructed by the solicitor, Parking and Traffic Appeals Service) for the adjudicator.

Held, granting judicial review, that 'the amount applicable in the circumstances of the case' in paragraph 2(4)(f) referred to the penalty which had been defined by law as the appropriate penalty in the particular circumstances; that the statutory power of the adjudicator was limited to the consideration of the matters which were set out in paragraph 2; and that, although the council had power to waive the penalty charge notice, taking mitigating circumstances into account, the wider mitigating or extenuating factors which might affect the exercise of the authority's discretion when deciding whether to collect parking fines, were not issues which the adjudicator could consider.

TRADE

Abuse of dominant position - not abuse for trader dominant in one market to use financial strength to move into new market - use of public funds to sell imagery not constituting abuse

Getmapping plc v Ordnance Survey: ChD (Mr Justice Laddie): 31 May 2002

The defendant, the government department responsible for the official definitive surveying and topographic mapping of Great Britain, created a national framework for geographical data, which provided the technology underpinning its 'MasterMap'.

This MasterMap consisted of several layers or themes, including a topographic layer and a digital imagery layer (colour images of the land).

The defendant planned to develop a 'one-stop shop' Web site, so that customers could obtain all their mapping and imagery requirements, including MasterMap, from one source.

Outside suppliers of the digital imagery, including the claimant, were to be used for the first few years of the Web site's operation, but later the defendant intended to market its own colour digital imagery to be incorporated into the one-stop shop.

The claimant sought an interlocutory mandatory injunction, obliging the defendant to place the claimant's images on its Web site, so that users could access its images direct from the site, on the grounds that the defendant had abused its dominance in the map market to set up the one-stop shop, contrary to section 18 of the Competition Act 1998, and would be cross-subsidising its own imagery from its map business, using public funds to sell the imagery and using its privileged position in the map market to compete with the claimant in the imagery market.

Mark Brealey QC (instructed by Theodore Goddard) for the claimant; Mark Barnes QC and Daniel Jowell (instructed by Slaughter and May) for the defendant.

Held, refusing the injunction, that the provenance of the funds which enabled a dominant trader to enter a new market was irrelevant to the issue of abuse of a dominant position; that as long as those funds were not obtained by abusive behaviour in the market in which the trader was dominant and were not used in an abusive way in the new market there was no breach of section18; that it was not an abuse per se for a trader dominant in one market to use his financial muscle to move into a new market; that, although using funds from the dominant market to allow predatory pricing in the new market would be an abuse, merely entering the market and enjoying a commercial advantage over others was not; and that, accordingly, even if the defendant was obtaining a competitive advantage in the imagery market, that did not indicate an abuse of a dominant position contrary to section 18.

POLICE

Statute conferring power on chief constable to apply for anti-social behaviour order - chief constable delegating power to officers - not ultra vires

R (Chief Constable of West Midlands Police) v Birmingham Magistrates' Court: QBD (Lord Justice Sedley and Mr Justice Poole): 30 May 2002

Through his officers, the chief constable brought before the magistrates' court applications for anti-social behaviour orders against five youths.

The district judge declared them null and void on the grounds that the chief constable's statutory power to consult with local authorities and make the applications under section 1 of the Crime and Disorder Act 1998 could not be delegated to an officer lower than the rank of superintendent.

The chief constable sought judicial review.

Jason Beer (instructed by the force solicitor, West Midlands Police, Birmingham) for the claimant.

Robin Howat (instructed by Glaisyers, Manchester) for one of the youths by his mother and litigation friend, as interested party.

The magistrates' court did not appear and was not represented.

Held, granting the application, that a chief constable could generally delegate the performance of his statutory functions to officers under his command for whom was legally answerable, subject to the qualifications that the delegation had to be to someone suitable and that some functions could not, consistently with their statutory purpose, be delegated at all; that it was for the office-holder to decide who was suitable, but questions of improper delegation were matters for the court; that the chief constable could therefore discharge his functions in question through an officer for whom he was answerable; and that it was for the chief constable to decide who was best suited to consult and apply for an anti-social behaviour order, and the court could not interfere unless his choice was irrational or otherwise beyond his powers.

WILL

Forfeiture clause - condition subsequent in codicil providing for dispositions to be forfeited if beneficiary challenging will - condition not contrary to public policy but void for uncertainty

Nathan v Leonard and others:

ChD (Mr John Martin QC sitting as deputy High Court judge):

28 May 2002

In her will, the testator directed that her residuary estate be divided into three parts: two-thirds to go to the first and second defendants, and the other third to be held on discretionary trusts for the claimant, his issue and two named charities, including the third defendant.

The testator subsequently executed a codicil which contained a condition that, in the event that a beneficiary wished to 'contest or disagree with' the will, the will would be overridden and the whole estate would go to the first and second defendants.

After the testator's death the claimant brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for further provision to be made for him out of the estate.

Trial of a preliminary issue was ordered as to whether the condition subsequent was a valid condition in law.

James Pickering (instructed by Singh Karran & Co) for the claimant.

Penelope Reed (instructed by Banky & Burger, Reading) for the first and second defendants.

Michael King (instructed by Campbell Hooper) for the third defendant.

Held, that a condition subsequent, the effect of which was to divest a benefit under a will if the beneficiary challenged the will, was not void for being contrary to public policy merely because the condition had the effect of deterring an applicant from making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for fear of losing his benefit under the will; that the condition did not prevent an applicant making a claim under the 1975 Act and, if he did so and forfeited his interest under the will, that could be taken into account by the court when determining his claim; that there was no reason why the policy considerations of the 1975 Act, under which certain dependants of the deceased should not be left without reasonable provision, required the condition itself to be invalidated; but that since the condition in the instant case was void for uncertainty it was unenforceable and the dispositions under the will were unaffected by it.

The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales; telephone: 020 7242 6471; fax: 020 7831 5247; http://www.lawreports.co.uk