Law reports

MENTAL DISORDER

Patient compulsorily detained in hospital - mental health review tribunal ordering discharge - subsequent detention by hospital authority unlawful

R (H) v Ashworth Hospital Authority; R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region: CA (Lords Justice Simon Brown, Mummery and Dyson): 28 June 2002

A mental health review tribunal ordered the discharge of a patient, who had been detained in hospital under section 3 of the Mental Health Act 1983.

However, the hospital authority decided to continue to detain him for treatment.

Mr Justice Stanley Burnton refused the patient's claim for judicial review of the authority's decision but granted the authority judicial review of the tribunal's decision.

The patient appealed.

Paul Walker QC and Jonathan Butler (instructed by Hogans) for the patient; Nigel Pleming QC and Alison Foster QC (instructed by Morgan Cole) for the hospital authority; Stephen Knafler (instructed by Legal Director, Sefton Metropolitan Borough Council, Southport) for B (interested party); Fenella Morris (instructed by Head of Legal Services, Hammersmith & Fulham London Borough Council and Capsticks) for Hammersmith & Fulham London Borough Council and Ealing, Hammersmith & Hounslow Health Authority (interested parties).

Held, allowing the appeal on the patient's claim but dismissing the appeal on the hospital's claim, that, in the absence of material circumstances of which the tribunal had not been aware when it had ordered the discharge, the hospital authority had not been entitled to 'resection' the patient without first obtaining judicial review of the order; but that the judge had been right to conclude that no reasonable tribunal could have made an order that the patient should be discharged immediately into the community without being satisfied that suitable after-care arrangements were in place.

HOUSING

Assured tenancy - possession - county court having no jurisdiction to make consent order without investigating whether statutory requirements met

Gil v Baygreen Properties Ltd: CA (Lords Justice Ward and Clarke and Sir Martin Nourse): 5 July 2002

The tenant had an assured tenancy of one room.

The landlord sought possession under the provisions in section 7 of the Housing Act 1988, relying on arrears of at least eight weeks' rent lawfully due.

The tenant's defence included a counterclaim for damages for breaches of covenant.

At the hearing in the county court agreement was reached whereby the tenant accepted a lump sum in return for vacating the room.

The judge, without hearing evidence, made a consent order in the landlord's favour, the tenant's counterclaim being stayed on terms.

The tenant appealed.

Daniel Lightman, who did not appear below, (instructed by Balsara & Co) for the tenant; Peter-John White (instructed by London Law Practice) for the landlord.

Held, allowing the appeal and setting the order aside, that the county court's jurisdiction to make a possession order for arrears of rent were limited by the requirements laid down in section 7(1)(3)(4) of, and schedule 2 to the Housing Act 1988, and if the statutory requirements were not satisfied jurisdiction could not be conferred by consent; that in the absence of a formal hearing or judgment there was no evidence (in particular any admission, express or implied, by the tenant of arrears being lawfully due) that the judge had satisfied himself that those requirements were met; and that, accordingly, the court had no jurisdiction to make the order.

UNDUE INFLUENCE

Gift - substantial assets transferred by elderly invalid to supportive neighbour without taking advice - presumption of undue influence arising and not rebuttedHammond v Osborn and Another: CA (Lords Justices Ward and Keene and Sir Martin Nourse): 27 June 2002

The donor, an elderly bachelor who lived alone, was befriended and became dependent for his daily needs on the donee.

Following a stay in hospital the donor, without being put under pressure by the donee but without taking advice, realised assets and transferred 297,000 to her.

He was left with his home, an annual pension and substantial tax liabilities.

The donor died intestate.

Letters of administration were granted to the claimant, the donor's cousin, who sought to have the gift set aside.

The judge found the donee an honest witness and rejected the claimant's case.

The claimant appealed.

Giles Harrap (instructed by Whiskers, Harlow) for the claimant; Donald McCue (instructed by Jeffries, Westcliff-on-Sea) for the donee.

Held, allowing the appeal, that there was a relationship of trust and confidence between the donor and donee and a gift so large that it gave rise to the presumption of undue influence; that although the doctrine was well-settled (see Royal Bank of Scotland plc v Etridge (No 2) [2001] 3 WLR 1021), there continued to be misconceptions as to the circumstances in which gifts would be set aside; that in order to rebut the presumption proof was required that the gift had been made only after full, free and informed thought by the donor; and that, since he had taken no independent advice before realising assets and making the transfer, the presumption was not rebutted and the gift would be set aside.

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