Law reports

LEGAL UPDATE

COMMERCIAL

Share sale agreement providing for retention of money where counsel's opinion certified bona fide claim with reasonable prospect of success - claim made supported by opinion - defendant not permitted to challenge status of opinion

Interleasing (UK) Ltd v Morris: ChD (Mr Justice Lightman):

30 May 2002

The claimant agreed to purchase shares from the defendant.

The agreement provided that the claimant would not pay over retention money to the defendant, but that the money would secure until trial any claim made by the claimant if it obtained counsel's opinion that the claim was bona fide and had a reasonable prospect of success.

The claimant made a claim for breach of warranty contained in the agreement and obtained counsel's opinion in accordance with the agreement.

The defendant counterclaimed for the balance in respect of the retention and applied for disclosure and inspection of instructions in respect of the opinion and summary judgment and release of the retention money.

The claimant sought orders striking out certain passages in the counterclaim which were directed to challenging the status of the opinion on the grounds that the instructions were erroneous and incomplete.

Michael Rollason (instructed by Bond Pearce, Bristol) for the claimant; Richard Morgan (instructed by Herbert Smith) for the defendant.

Held, dismissing the defendant's applications and granting the claimant's applications, that it was not open to the defendant to go behind counsel's opinion and challenge it on the ground that it had not been given on the basis of true facts or proper instructions; that counsel's opinion stood as a form of certificate and the only issue could be whether on its face it fulfilled the requirements laid down in the agreement between the parties; that if the claimant's claim had been certified as having a reasonable prospect of success that of itself was a substantial, if not sufficient, basis for holding that the claim was bona fides; and that, since counsel had so certified, her opinion was in accordance with the agreement between the parties, the defendant was not entitled to summary judgment and the claimant was entitled to keep the retention money.

CONTEMPT OF COURT

Leak to newspaper of secure patient's medical records - hospital seeking order for disclosure of source - order justified

Ashworth Hospital Authority v MGN Ltd: HL (Lord Slynn of Hadley, Lord Browne-Wilkinson, Lord Woolf, Lord Nolan and Lord Hobhouse of Woodborough):

27 June 2002

Information from the medical records of a secure hospital concerning a convicted murderer detained there was leaked to a newspaper.

It almost certainly came from the hospital's computer database and had been supplied, via an intermediary, by an employee of the hospital authority.

The authority attempted unsuccessfully to identify the employee and then sought an order requiring the newspaper, among other things, to identify the employee and anyone involved in acquiring the information.

The judge made the order sought.

The Court of Appeal (see [2001] Gazette, 8 February; [2001] 1 WLR 515) dismissed the newspaper's appeal.

It appealed.

Desmond Browne QC, Richard Parkes and Anna Coppola (instructed by Kerman & Co) for the newspaper.

Nigel Pleming QC and Vincent Nelson QC (instructed by Reid Minty) for the hospital authority.

Held, dismissing the appeal, that disclosure of an informant's identity could be ordered against a person not himself guilty of a civil or criminal wrong but involved or participating in such wrongdoing by the informant; that the claimant did not have to require the information in order to bring proceedings against the informant provided that he identified some other legitimate reason for requiring it, such as dismissal of the employee responsible for a leak of information; and that, having regard to the need for protection of the hospital's records and the authority's need to identify and punish the informant, the order for disclosure had been a necessary and proportionate response within section 10 of the Contempt of Court Act 1981 and article 10 of the European Convention on Human Rights.

(WLR)

CRIMINAL

Unlawful sexual intercourse - statutory defence not available to men over 23 - not unfair or discriminatory

R v Kirk, R v Russell: CA (Lord Justice Judge, Mr Justice Hunt and Mr Justice Keith):

31 May 2002

The defendants, men aged 29 and 25, were charged on indictment with unlawful sexual intercourse with a girl aged under 16.

At a preparatory hearing it was submitted on their behalf that the lack of the so-called 'young man's defence' in section 6(3) of the Sexual Offences Act 1956 for men older than 23 was discriminatory and meant that the defendants could not have a fair trial, in breach of articles 6 and 14 of the European Convention on Human Rights, because a woman committing the same actus reus (and therefore charged with indecent assault) would be entitled to avail herself of the defence that she genuinely believed the complainant was older than 16, and furthermore, a woman could rely upon that defence whatever age she was.

The judge ruled against that submission.

The defendants appealed.

Stephen Thomas (instructed by Mander Hadley & Co, Coventry) for Kirk; James Burbidge (instructed by Heer Manek Solicitors, Coventry) for Russell; Morris Cooper (instructed by the Crown Prosecution Service, Coventry) for the Crown.

Held, dismissing the appeal, that the statutory defence was not discriminatory because a woman could be charged with unlawful sexual intercourse as an aider and abettor, or counsellor and procurer, when the same defence would be available to her if she were under 24; that there was nothing unreasonable or disproportionate in the fact that once a man had reached 24 the defence was no longer available to him, even if the choice of age might be arbitrary; and that, accordingly, the judge's decision was correct.

(WLR)

DAMAGES

Interim payment to asbestosis victim under provisional consent order on 'full liability basis' - widow bringing further proceedings following victim's death from mesothelioma - defendant precluded from contesting liability

Green v Vickers Defence Systems and Others: CA (Lord Justices Ward and Clarke and Mr Justice Collins): 12 June 2002

The deceased had been employed by the defendants as a fitter.

He died in 2001 as a result of mesothelioma caused by exposure to asbestos dust.

Before diagnosis of mesothelioma he had claimed against the defendants for his suffering from pleural plaques and under a consent order in June 2000 the defendants had agreed to an immediate award of 4000 on a 'full liability basis' made on the assumption that he would not thereafter develop mesothelioma.

After his death the claimant, his widow, brought proceedings on her own behalf and as his personal representative against the defendants relying on the consent order to establish entitlement to damages on the basis of the defendants' full liability.

The judge in the county court held that issues of causation and liability remained open.

The claimant appealed.

Allan Gore (instructed by Robinson and Murphy, Newcastle-upon-Tyne) for the claimant.

RF Owen QC (instructed by Peter Rickson & Partners, Manchester) for the defendants.

Held, allowing the appeal, that the issue turned on the construction of the consent order, it being open to the parties to consent to or to leave open any matters, and there was no principal that following a consent order issues of causation were left open; and that, on a true construction, the provisional consent order admitting liability precluded the defendants from contesting the claimant's case.

EMPLOYMENT

Unfair dismissal complaint posted first class before expiry of time limit - claim arriving two days after expiry - relevant factors for tribunal considering whether 'reasonably practicable' to have presented complaint in time

Consignia plc v Sealy: CA (Lords Justices Brooke and Latham and Mr Justice Hart): 19 June 2002

The employee posted first class his claim alleging unfair dismissal, before the time limit for complaining expired.

It did not arrive until two days after expiry of the time limit.

The employment tribunal found that he had had a reasonable expectation that the claim would be delivered next day in the course of post and concluded that, while the complaint was out of time, it had not been reasonably practicable for the employee to have presented it within time and that, applying section 111 (2) of the Employment Rights Act 1996, the claim should be considered.

The employer appealed.

The Employment Appeal Tribunal refused to direct that the employer's proposed appeal should proceed to a full hearing.

The employer appealed.

Lydia Seymour (instructed by Consignia Legal Services) for the employer.

Marc Jones, solicitor (of Underwoods, Hemel Hempstead acting on a pro bono basis) for the employee.

Held, allowing the appeal and remitting the claim to a different tribunal, that the strict rule in Godwin v Swindon Borough Council [2002] 1 WLR 997 did not apply in employment tribunal cases; that the burden of establishing the facts necessary to give the tribunal jurisdiction under the1996 Act lay on the employee; that, in the absence of evidence to the contrary, a letter sent by first-class post was to be taken to have been delivered on the second day after posting; but that the tribunal was not entitled to infer from the fact that the employee worked in the Post Office that he 'knew the procedures' in the absence of any evidence to the contrary.

LICENSING

Licensed premises owned by unlimited company - application for transfer of licence to company's employee found to be personally and professionally fit and proper to hold licence - non-disclosure of identities of company's shareholders not grounds for refusing application

R v Warrington Crown Court,ex parte RBNB (an unlimited company): HL (Lord Bingham of Cornhill, Lord Mustill, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry): 20 June 2002

An unlimited company which owned a licensed public house applied for the transfer of the justices' on-licence to K, one of its employees.

The police objected to the application on the ground of the company's adamant refusal to reveal the identities of its shareholders.

The justices refused the application on the ground that they could not be satisfied as to K's fitness or propriety as required by section 3 of the Licensing Act 1964 without knowing the shareholders' identities.

The Crown Court dismissed the company's appeal, although it found as a fact that K was a fit and proper person to hold the licence.

On the company's application for judicial review the judge granted a declaration that the Crown Court's decision was contrary to law.

The Court of Appeal [2001] 1 WLR 2239 upheld that decision.

The chief constable appealed.

Lord Carlile of Berriew QC and Peter Moss (instructed by Sharpe Pritchard) for the chief constable; Roderick Cordara QC and Paul Stanley (instructed by Finers Stephens Innocent) for the company.

Held, dismissing the appeal, that 'a fit and proper person' was a portmanteau expression directed to ensure that an applicant for permission to do something had the personal qualities and professional qualifications reasonably required of a person doing whatever it was that the applicant sought permission to do; that before granting a licence, justices, or the Crown Court on appeal, had to be satisfied that the applicant had the personal qualities and professional qualifications reasonably required of a person seeking to run the particular public house for which he sought the licence; that the adamant refusal of the beneficial owners to reveal their identity naturally invited speculation as to what their motives might be, but such speculation was relevant only if and to the extent that it threw doubt on K's ability to perform his duties as a licensee; and that, since the Crown Court's task was to judge, in the light of all the evidence, whether K was a fit and proper person to be the licensee of the premises in question and since it had found him to be so personally and professionally, the only answer the Crown Court could rationally have given was that K was a fit and proper person and so, in giving an answer adverse to him, the Crown Court had taken account of considerations irrelevant to its decision.

(WLR)

PRACTICE

Documents disclosed for inspection - privileged documents mistakenly disclosed - receiving party entitled to retain and use them

Al Fayed and others v Commissioner of Police of the Metropolis and others: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justices Robert Walker and Clarke):

29 May 2002

In March 1998, the claimants were arrested on suspicion of theft or criminal damage relating to the contents of a safe deposit box kept at Harrods.

The arrests were publicised.

The second, third, fourth and fifth defendants, officers of the Metropolitan Police, investigated the allegations.

The claimants were released.

The investigation ended in July 1998.

No charges were brought against any of them.

The claimants brought proceedings for false imprisonment.

The defence claimed that the claimants had been lawfully arrested with reasonable cause.

By mistake the defendants disclosed to the claimants for inspection two opinions from counsel which had contributed to the police decision not to charge the claimants.

Before the trial they were granted an injunction ordering the return of the documents and restraining the claimants from using them or the information they contained.

The claimants appealed.

Michael Briggs QC, Philip Marshall and Ingrid Newman (instructed by Lewis Silkin Solicitors) for the claimants; Duncan MacLeod and Perrin Gibbons (instructed by Director of Legal Services, Metropolitan Police) for the first, second, fourth, fifth and sixth defendants; Simon Freeland QC (instructed by Rowe Cohen, Manchester) for the third defendant.

Held, allowing the appeal, that if privileged documents were mistakenly disclosed for inspection by one party to litigation, in circumstances where it would not have been obvious to a reasonable solicitor that a mistake had been made, the disclosing party was not entitled to an injunction ordering the receiving party to return the documents; and that the receiving party should be allowed to make proper use of the documents on the basis that they were no longer privileged and no public interest immunity attached to them, subject to the court's powers of case management.

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.ukWLR means that a report has been submitted for publication in the Weekly Law Reports