Law reports

CRIMINAL

Evidence - identity - qualified identification of defendant - evidence admissible if relevant and probative

R v George (Barry): CA (Lord Woolf CJ, Mr Justices Curtis and Henriques): 29 July 2002

The defendant was charged with murder.

At his trial, the defence argued that if a witness had failed to identify, or had only made a qualified identification of, the defendant at an identification parade the only evidence that could be given of what had occurred at that parade was that there had been a non-identification.

The Crown submitted that it should be allowed to investigate the circumstances in which a failure to make a positive identification had occurred in the light of all the circumstances, including delay and change of appearance.

The judge refused to exclude the evidence of qualified or non-identifications and the defendant was convicted.

The defendant appealed.

Michael Mansfield QC and Maryam Syed (instructed by Kean Etienne) for the defendant; Orlando Pownall QC and Jonathan Laidlaw (instructed by Crown Prosecution Service, Ludgate Hill) for the Crown.

Held, dismissing the appeal, that a qualified identification could be admissible as being relevant and probative if it supported, or at least was consistent with, other evidence that indicated the defendant committed the offence, or if the explanation for a non or qualified identification might help to place it in its proper context and so, for example, show that the other evidence given by the witness might still be correct; that in each case it was for the judge to decide whether the evidence was more prejudicial than relevant and probative, bearing in mind the importance of protecting a defendant against unfairness; that an identification which was qualified could not be transformed into one which was unqualified by careful questioning by the prosecution, and a defendant should not be convicted on the evidence of a qualified identification alone; and that, accordingly, in the circumstances, the judge had properly admitted the identification evidence.

DISCRIMINATION

Employee claiming disability discrimination against employer - tribunal finding no disability - approach as to construction of 'impairment' - Discrimination Rights Commission not entitled to make representations

McNicol v Balfour Beatty Rail Maintenance Ltd: CA (Sir Andrew Morritt V-C, Lord Justice Mummery and Mr Justice Wall): 26 July 2002

The employee claimed that he was suffering from a disability and asserted that his employers, in breach of the Disability Discrimination Act 1995, had refused him the right to work and had failed to make any reasonable adjustments to his employment arrangements to ensure that he was not substantially disadvantaged.

The employment tribunal, on a preliminary hearing, held that the employee was not suffering from a disability so that he was not entitled to pursue his claim of disability discrimination.

The Employment Appeal Tribunal dismissed his appeal and he appealed to the Court of Appeal.

The employee in person; Oliver Campbell (instructed by Kennedys) for the employer; Jennifer Eady (instructed by Rebecca Howard, Legal Officer for the Disability Rights Commission).

Held, dismissing the appeal, that the term 'impairment' in paragraph 1(1) of schedule 1 to the Disability Discrimination Act 1995 was to bear its ordinary and natural meaning; that it was clear from schedule 1 that impairment could result from an illness or consist of an illness, provided that, in the case of mental impairment, it was a 'clinically well-recognised illness'; that the tribunal had been entitled on the available evidence to find that the employee was not suffering from a disability; that the tribunal had not erred in law and that accordingly the appeal failed; and that (per Lord Justice Mummery) the statutory duties given to the Disability Rights Commission, established by the Disability Rights Commission Act 1999, did not entitle the commission as such to make representations to a tribunal or court to which it was not a party.

EMPLOYMENT

Employee complaining of unfair dismissal and detriment as result of making protected disclosure - approach to be adopted by employment tribunal - requirement for directions hearings

ALM Medical Services Ltd v Bladon: CA (Sir Andrew Morritt, V-C, Lords Justice Mummery and Rix): 26 July 2002

The employee complained that he had been dismissed unfairly for making a disclosure which was protected under part IVA of the Employment Rights Act 1996.

The employment tribunal refused to allow the employer to call certain evidence relating to protected disclosure and to the reason for dismissal on the ground that it was irrelevant, and found that the employee had been subjected to a detriment within section 47B and unfairly dismissed within section 103A for the principal reason that he had made a protected disclosure.

The Employment Appeal Tribunal refused to allow the employer's appeal to proceed to a full hearing and the employer appealed.

Alan Pardoe QC (instructed by Glassbrooks, St Anne's on Sea) for the employer; Melanie Tether (instructed by the Employment Rights Unit, Unison) for the employee.

Held, allowing the appeal, that in protected disclosure cases directions hearings should be held in order to identify what evidence the parties intended to call; that the tribunal was required to satisfy itself that all the requirements of the protected disclosure provisions in part IVA of the Employment Rights Act 1996 had been satisfied on the evidence; that the duty of the tribunal was to hear and consider all the relevant evidence from the employer and to allow the employer to challenge the employee's evidence on the relevant issues and that it had erred in concluding that the evidence which the employer wished to call was not relevant.

IMMIGRATION

Asylum seekers - removal direction - right of appeal under European Convention on Human Rights - deportation direction decision giving rise to right of appeal

R (Kariharan) v Secretary of State for the Home Department; R (Kumarakuruparan) v Secretary of State for the Home Department; CA (Lords Justice Auld, Sedley and Arden); 25 July 2002

The applicants in the first case were two refused asylum seekers and the applicant in the second case was an illegal immigrant.

They were served with removal directions in April and May 2001.

An application for judicial review in the first appeal for a declaration that they were entitled to appeal against the removal order under section 65 of the Immigration and Asylum Act 1999, which came into force on 2 October 2000, giving them a right of appeal against the removal direction invoking the European Convention on Human Rights was dismissed.

The applicant's application in the second case for similar relief was granted.

The applicants appealed in the first case and the secretary of state appealed in the second case.

Manjit Singh Gill QC and Shivani Jegarajah (instructed by MK Sri & Co, Harrow) for the applicants in the first appeal; Robin Tam (instructed by Treasury Solicitor) for the secretary of state; Andrew Nicol QC and Simon Cox (instructed by Van-Arkadie & Co, Wembley) for the applicant in the second appeal.

Held, allowing the first appeal and dismissing the second appeal, that on the true construction of section 65(1) of the 1999 Act a removal direction clearly was a 'decision relating to the claimants' entitlement to enter or remain in the UK' within the framework of the immigration legislation and not a mere direction to implement a decision refusing an application before section 65 came into force on 2 October 2000; that, therefore, once an applicant raised his right under the European Convention on Human Rights when he was served with a removal direction after 2 October 2000, he had a right of appeal against that removal direction.

LAND

Easement - land adjacent to freehold cottages - use as communal garden - use creating easement

Mulvaney v Jackson and others: CA (Lords Justice Simon Brown, Mance and Latham): 4 July 2002

The claimant was the owner of one of a group of cottages which, together with adjacent land, belonged to the defendants' predecessor in title before they were sold off.

Since 1970, the claimant had used the land with the other cottage owners as a communal garden.

In 1996, the defendants removed a flower bed tended by the claimant on part of the land abutting her wall.

The district judge granted a declaration sought by the claimant that she was entitled to reinstate the flower bed.

Judge Kershaw QC, sitting at Preston County Court, dismissed the defendants' appeal against the decision on the ground that the claimant was entitled to a right to use the land as a communal garden.

The defendants appealed.

Sean Kelly (instructed by Jobling & Knape, Carnforth) for the defendants; Jonathan Gaunt QC and Mark Harper (instructed by Oglethorpe Sturton & Gillibrand, Lancaster) for the claimant.

Held, dismissing the appeal, that, even though the defendants had not themselves created or maintained the garden, the land had been used as such ever since the sale of the cottages; that the fact that the defendants had been content to allow the dominant owners to determine the layout of the garden and to maintain it did not derogate from the conclusion that the defendants had been prepared to set aside the land for the use of the dominant owners as a communal garden; and that, accordingly, the claimant was entitled to a right to use the land as a communal garden along with the other dominant owners.

LIMITATION OF ACTION

Mortgage debt - shortfall of principal after sale of property by lender - 12-year limitation period applicable

Bristol & West plc v Bartlett and another; Paragon Finance plc v Banks; Halifax plc v Grant: CA: (Lords Justice Schiemann, Buxton and Longmore): 31 July 2002

In each case, after default by a borrower on mortgage repayments, the lender sold the security but the sale realised an insufficient sum to meet the full mortgage debt.

The lender brought an action to recover the shortfall.

There was an issue as to whether the claim was governed by sections 5, 8 or 20 of the Limitation Act 1980, which determined whether the limitation period was six or 12 years.

Jonathan Brock QC and Paul French (instructed by South West Law (Legal Services in the Community) Ltd, Bristol) for the lender in the first action; Malcolm Waters QC and Michael Bowmer (instructed by Osborne Clarke, Bristol) for the defendant in the first action; Andrew Simmonds QC and Patrick Rolfe (instructed by Shoosmiths, Northampton) for the lender in the second action; Timothy Dutton QC (instructed by Turners, Bournemouth) for the defendant in the second action; Ian Leeming QC and David Gilchrist (instructed by DLA, Leeds) for the lender in the third action.

The defendant in the third action in person.

Held, finding for the lenders in each case, that even if the lender had exercised his power of sale before he issued proceedings claims for a mortgage debt were governed by section 20 of the Limitation Act 1980; that it followed that from the time of the accrual of the cause of action the principal was subject to a limitation period of 12 years under section 20(1) but the interest was subject only to a six-year limitation period under section 20(5).

(WLR)

REVENUE

Capital allowances - finance leasing - complex agreement for sale and lease-back of pipeline - not qualifying expenditure

Barclays Mercantile Business Finance Ltd v Mawson (Inspector of Taxes): ChD (Mr Justice Park): 22 July 2002

The taxpayer company traded in finance leasing.

It agreed to buy from an Irish gas company on lease-back terms for 91 million a natural gas pipeline that was already constructed and financed.

Complex documentation ensured that the taxpayer paid 91 million to the Irish company, which was required to deposit that amount with an investment company from where it was passed to a bank under the taxpayer's control.

A claim for allowances in respect of the expenditure under section 24(1) of the Capital Allowances Act 1990 was refused by the tax inspector.

The taxpayer's appeal against the refusal was dismissed by special commissioners.

The taxpayer appealed.

Graham Aaronson QC and Malcolm Gammie QC (instructed by Wilde Denton Sapte) for the taxpayer; David Goy QC and David Ewart (instructed by Solicitor of Inland Revenue) for the Crown.

Held, dismissing the appeal, that section 24(1) of the 1990 Act provided for capital allowances where expenditure was incurred by a person on machinery or plant wholly and exclusively for the purposes of his trade; that in many cases finance leasing transactions were capable of qualifying for such allowances; that applying the anti-avoidance provisions laid down by the House of Lords in Ramsay (WT) Ltd v IRC [1982] AC 300 and McNiven v Westmoreland Investments Ltd [2001] 2 WLR 377, the commercial reality was that the expenditure was not incurred on machinery or plant but on a series of agreements designed to ensure secure flows of money; and that, accordingly, the requirements of section 24(1) of the 1990 Act were not met.

SHIPPING

Marine insurance - vessel and cargo disappeared during voyage - cargo insured for all risks from time it left ware-house - insurers not liable

Nima Sarl v the Deves Insurance Public Co Ltd; CA (Lords Justice Potter and Keene and Mr Justice Sumner); 30 July 2002

The claimants shipped through a vessel 5,500 tons of rice to be carried from Thailand to Senegal covered by a marine cargo insurance policy, issued by the defendant company for voyage between specified ports in Thailand and Senegal.

A side note attached to the policy stated that 'the insurance to attach from the time the goods leave the warehouse...

for the commencement of the transit and to continue during the ordinary course of the transit'.

The vessel and cargo disappeared during the voyage and the claimant served a claim form issued in England on the defendants in Thailand.

The defendant's application to set aside the service was dismissed.

The defendants appealed.

Graham Dunning QC and Claire Blanchard (instructed by Holman Fenwick & Willan) for the claimant; Julian Malins QC and Simon Salzedo (instructed by Clyde & Co, Guildford) for the defendants.

Held, allowing the appeal, that the effect of section 44 of the Marine Insurance Act 1906 which provided that 'where the destination is specified in the policy, and the ship, instead of sailing for that destination, sails for any other destination, the risk does not attach' was not avoided by the contractual variation of the insurance police relating to a voyage policy (as opposed to a time policy); and that, therefore, at the point when deviation occurred (without lawful excuse) the insurer was discharged from liability.

TORT

Negligence - hospital holding fund-raising fair - visitor injured on equipment negligently set up by uninsured contractor - hospital owing duty of care to visitor to inquire as to contractor's insurance position

Gwilliam v West Hertfordshire Hospitals NHS Trust and others: CA (Lord Woolf CJ, Lords Justice Waller and Sedley): 24 July 2002

The claimant was injured at a hospital fund-raising fair on a 'splat-wall', on which participants bounced from a trampoline and adhered by Velcro to a wall.

The splat-wall had been hired from the second defendant, an independent contractor who had been selected from the phone book, and the hospital had paid him an extra 100 to provide staff for the equipment so that it would have the benefit of his public liability insurance.

The claimant's injuries were caused because the equipment was negligently set up by the second defendant but his insurance had expired shortly before the fair and the claimant settled her action against him for 5,000.

She sought further damages from the hospital.

On the hearing of a preliminary issue, the judge held that the hospital had not owed any duty to the claimant in respect of which she could recover damages.

The claimant appealed.

Laurence Marsh (instructed by Collins Solicitors, Watford) for the claimant; Richard Furniss (instructed by Beachcroft Wansbroughs) for the hospital.

Held, dismissing the appeal (Lord Justice Sedley concurring in the result), that (per Lord Woolf CJ) as the occupier of the hospital grounds, the hospital owed the claimant the common duty of care under section 2 of the Occupiers Liability Act 1957 to take such care as, in all the circumstances, was reasonable to see that she would be reasonably safe in using the premises to which she had been invited and that, on the facts, in order to discharge that duty, the hospital had been under an obligation to inquire into the insurance position of the contractor so as to confirm his suitability to be entrusted with the supply and operation of the splat-wall; that (per Lords Justice Waller), whether or not the 1957 Act brought about direct liability, since members of the public had been invited by the hospital to take part in activities which were inherently risky, which the hospital had chosen to have organised by an independent contractor, it was fair, just and reasonable to impose a duty on the hospital to choose an independent contractor who could properly meet any potential liability which might occur; that as the hospital did inquire as to the second defendant's insurance position, and since it would be unreasonable to expect it to check the policy document, that duty had been fulfilled.

(WLR)

Employment - risk of danger to employee - employer under duty to dismiss employee

Coxall v Goodyear Great Britain Ltd: CA (Lords Justice Simon Brown and Brooke): 22 July 2002

The claimant was supplied with protective equipment to work as a paint and line operator at the defendants' tyre factory.

The claimant continued to do the work despite advice of the works doctor that he should not work with the paint because of his constitutional predisposition to asthma.

The claimant was later diagnosed as suffering from occupational asthma and certified unfit to work.

Judge Rundell, sitting at Walsall County Court, awarded damages against the defendants for breach of 'an obligation...

to take the claimant off the job'.

The defendants appealed.

Simon Beard (instructed by Chapman Everatt) for the defendants; Satinder Hunjan QC (instructed by Rowley Ashworth) for the claimant.

Held, dismissing the appeal, that the defendants contended, in reliance on Withers v Perry Chain Co Ltd [1961] 1 WLR 1314, that employers were not under a duty to dismiss an employee from work which could ordinarily be safely undertaken, merely because of some particular susceptibility on his part known to both him and them exposing him to the risk of harm if he continued in that work; that the Withers principle could not be accepted as being in no way dependent upon the magnitude of the risk in question; that there could be cases where, despite the employee's desire to work, the employer would be under a duty in law to dismiss the employee so as to protect him from physical danger; and that such a duty arose in the present case.

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