Law reports

CONFIDENTIAL INFORMATION

Final injunction restraining defendant from breaching confidentiality agreement - third party broadcaster wishing to use documents obtained from defendant - injunction not binding on broadcaster and disclosure in public interest

The Jockey Club v Buffham [2002] EWHC 1866 (QB): QBD (Mr Justice Gray): 13 September 2002

The claimant obtained a final consent order in proceedings to enforce a covenant providing for non-disclosure of confidential information obtained by the defendant in the course of his employment as the claimant's head of security, whereby he had agreed not to divulge any such information without the claimant's consent.

The British Broadcasting Corporation wished to make a television programme bringing to public attention a number of scandals and instances of corruption endemic in British horse-racing during the past decade and the alleged failure of the claimant to address them, and applied to vary the order so that use could be made of various documents in the defendant's possession.

The claimant contended that using the documents without its consent would constitute contempt of court.

Mark Warby QC and Jacob Dean (instructed by Charles Russell) for the claimant; Richard Spearman QC and Godwin Busuttil (instructed by BBC Litigation) for the British Broadcasting Corporation; Anne Studd (instructed by Solicitor, Greater Manchester Police) for the Chief Constable of the Greater Manchester Police.

Held, granting the application, that, since the essence of the contempt committed by third parties with notice of an injunction consisted in interference with the course of the proceedings in which the injunction had made, and since there was nothing in principle to require the contrary, an injunction contained in a final order was not binding on a third party; and that, in any event, on balance the public interest in disclosure outweighed the right of confidence of the claimant.

EMPLOYMENT

Employee injured while handling goods at warehouse - judge dismissing claim in negligence and breach of statutory duty - appropriate steps to reduce risk including training recognised by the employer as necessary to increase risk awareness

O'Neill v DSG Retail Ltd: CA (Lords Justice Peter Gibson and Chadwick and Mr Justice Nelson): 31 July 2002

The claimant was injured when handling goods at a warehouse which he managed for the defendant company.

He brought a claim for damages for negligence and breach of statutory duty under the Manual Handling Operations Regulations 1992 (SI 2793/1992).

The judge dismissed the claim.

The claimant appealed.

Simon Michael (instructed by Austins, Luton) for the claimant; Rohan Pershad (instructed by Beachcroft Wansbroughs) for the company.

Held, allowing the appeal, that, where an employer was required to take appropriate steps to reduce a real risk of injury to the lowest level reasonably practicable, he should assess the risk by reference to the particular task, the context of where it was performed and particularly the employee who was to perform it; that the appropriate steps to reduce risk included steps in training recognised by the employer himself as necessary to increase the awareness of risk; that it was bound to be reasonably practicable to put into practice the level of training which the employer had decided was appropriate and in fact gave to many, if not most, new employees; and that, had the judge considered properly the applicability of the regulations, she would have found the employer in breach, and she should have considered evidence on causation in the context of that breach and found that the breach in failing to train was a cause of the accident.

FAMILY

Wrongful removal of teenage child to UK - child objecting to application for immediate return - effects of delay and existence of proceedings in requesting state

In re L (A Child) (Abduction: Jurisdiction) [2002] EWHC 1864 (Fam): FamD (Mr Justice Wall): 9 September 2002

The mother removed the child, who was aged 14, from France to England in December 2001.

In March 2002, the father applied to the English court under article 3 of the Convention on the Civil Aspects of International Child Abduction, as incorporated into English law by the Child Abduction and Custody Act 1985, for an order for the child's immediate return to France, and in May 2002, in French divorce proceedings, he obtained a non-conciliation order and an order for the child's return.

Since making the application, the father had significantly failed to engage with the English proceedings which, as a consequence, had been unduly prolonged.

The child objected to the return under article 13(b) of the convention.

Anthony Kirk QC and Marcus Scott-Manderson (instructed by White & Sherwin, Croydon) for the father; Henry Setright QC and Marie-Claire Sparrow (instructed by Pritchard Joyce & Hinds, Beckenham) for the mother; Mark Everall QC (instructed by Dawson Cornwell) for the child.

Held, refusing the application, that the mere fact that there were proceedings continuing in a requesting state was not a reason for refusing to exercise the discretion not to return a child of sufficient age and maturity who was objecting thereto; that nothing in Council Regulation (EC) No 1347/2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses prevented the hearing of an application for the immediate return of the child in a case of wrongful removal; and that delay caused by the parent seeking return was a factor which could properly be taken into account.

HUMAN RIGHTS

Privacy and non-discrimination - police retaining fingerprints and DNA samples of suspects not subsequently convicted - compatible with human rights

R (S) v Chief Constable of South Yorkshire Police; R (Marper) v Same: CA (Lord Woolf CJ, Lords Justice Waller and Sedley): 12 September 2002

In each case, the claimant was arrested by the police, charged with a criminal offence and his fingerprints and DNA samples were taken.

The claimant in the first case was subsequently acquitted and proceedings against the claimant in the second case were abandoned by the Crown Prosecution Service.

The chief constable informed both claimants that the police would retain their fingerprints and DNA samples, pursuant to section 64(1A) of the Police and Criminal Evidence Act 1984, as amended by section 82 of the Criminal Justice and Police Act 2001.

On the claimants' applications for judicial review of the chief constable's decision, the Divisional Court held that the retention of their fingerprints and DNA samples did not contravene either their right to privacy under article 8 or their right not to be discriminated against under article 14 of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998.

The claimants appealed.

Richard Gordon QC and Stephen Cragg (instructed by Howells, Sheffield) for the claimants; David Bean QC and David N Jones (instructed by the Solicitor for South Yorkshire Police) for the chief constable; Rabinder Singh QC and James Strachan (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department, as an interested party.

Held, dismissing the appeals, that the extent to which the retention of fingerprints and samples of DNA was regarded as interfering with the personal integrity of the individual depended very much on the cultural traditions of a particular state; that, in this jurisdiction, fingerprints and DNA samples were material which was regarded as being personal to the individual from whom it was taken and, therefore, the retention of such material by the police interfered with an individual's right under article 8(1) to respect for his private life; but that the interference was justified under article 8(2) by the need to protect the public from the consequences of crime; that the retention of such material did not contravene an individual's right not to be discriminated against under article 14; and that the chief constable's policy of normally insisting on retention, but providing for exceptions to be made if exceptional circumstances were shown to exist, was a perfectly appropriate policy.

(WLR)

LAND

Registrable charge - local registering authority failing to notify purchaser of agricultural occupancy condition - compensation to be assessed as at date of judgment

Smith and another v South Gloucestershire Council: CA (Lords Justice Ward and Mance and Sir Martin Nourse): 31 July 2002

In 1995, the claimants purchased a derelict farm house to renovate for home, business and investment purposes.

In November 1998, having spent more than 220,000, they learned that the property was subject to an agricultural occupancy condition.

The defendant council, as local registering authority, had failed to disclose its existence when searches had been requisitioned at the time of purchase.

The claimants brought an action for compensation.

In September 2001, the judge, having held the council liable to pay the claimants compensation, assessed the amount at 197,500 (plus interest) as reflecting the difference between the property's value without the occupancy condition and its value subject to the condition in November 1998.

The claimants appealed.

Stephen Jourdan (instructed by Burges Salmon, Bristol) for the claimants; Richard Lynagh QC and Daniel Shapiro (instructed by Wansboroughs, Devizes) for the council.

Held, allowing the appeal, that section 10 of the Land Charges Act 1975 (compensation for non-registration or defective official search certificate) imposed liability on the council; that, in the absence of authority and as a matter of principle, the claimants, having acted reasonably in not selling the property before receiving adequate compensation, were entitled to have the amount assessed by reference to its value not at the date of first discovering the existence of the charge but as at the date of the compensation hearing in September 2001; and that, accordingly, the compensation would be increased to 292,500.

PROFESSIONS

Proceedings brought against solicitor personally - solicitor represented by own firm - solicitor entitled to profit costs of firm following discontinuance of proceedings

Malkinson v Trim: CA (Lords Justices Potter and Chadwick and Mr Justice Wall): 13 September 2002

The fifth defendant ceased to be a partner in T & Co solicitors in 1987 and, subsequently, became a partner in another firm, C.

In 1993, the legatee commenced proceedings against the former partners of T & Co for the reinstatement of moneys which he alleged had been wrongfully paid out of the estates of his late mother and father.

The fifth defendant's new firm acted for him in the litigation.

Subsequently, the legatee served a notice of discontinuance, the effect of which was that, unless the court otherwise ordered, the legatee was liable for the defendants' costs.

The costs officer refused the legatee's application disputing C's bill of costs.

Costs Judge Rogers upheld that decision on appeal.

The legatee appealed.

Simon Jonathan Brown (instructed by Ashton Bond Gigg, Nottingham) for the legatee; Alexander Hutton (instructed by Crusts, Spalding) for the fifth defendant.

Held, dismissing the appeal, that the principle that, where an action was brought against a solicitor who defended it in person and obtained judgment, he was entitled on taxation to the same costs as if he had employed a solicitor extended to cover the situation where some or all of the work was carried out by one or more of his partners; that the position of a practising solicitor who chose to represent himself in his firm name or (where in partnership) to be represented by his firm, remained unaltered by the provisions of the Civil Procedure Rules 1998, rule 48.6; and that, accordingly, the legatee was liable for the costs claimed in C's bill, including the firm's profit costs.

SOCIAL SERVICES

Discharged mental patients - provision of residential after-care - whether entitlement to charge

R v Manchester City Council, Ex parte Stennett; R v Redcar and Cleveland Borough Council, Ex parte Armstrong; R v Harrow London Borough Council, Ex parte Cobham: HL (Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Steyn, Lord Hutton and Lord Millett): 25 July 2002

The applicants, who had been compulsorily detained under the provisions of the Mental Health Act 1983 but then discharged from hospital, were each charged by their local social services authority for the cost of after-care accommodation provided pursuant to their authority's duty under section 117 of that Act, notwithstanding that the section contained no charging provision, on the basis that it was a gateway provision to ensure that after-care services were provided under such other provisions as were appropriate, in the applicants' cases section 21 of the National Assistance Act 1948, which did contain a charging provision.

The applicants sought a judicial review of the decisions to charge them.

The judge held that section 117 was not a gateway provision and quashed the decisions to charge.

The Court of Appeal (sub nom R v Richmond upon Thames London Borough Council, Ex parte Watson [2001] QB 370) upheld the judge's decision.

Three of the authorities appealed, the applicant in the fourth case having died.

Richard Lissack QC, Robin Tolson QC and Mark Mullins (instructed by Head of Legal Services, Richmond upon Thames London Borough Council Legal Department, Manchester City Council, Chief Legal Officer, Redcar and Cleveland Borough Council and Solicitor to the Council, Harrow London Borough Council) for the authorities; Richard Drabble QC and Jenni Richards (instructed by Hogans, Rainhill, Public Law Project and Mackintosh Duncan) for the applicants.

Held, dismissing the appeal, that section 117 was not a gateway section but a free-standing provision which authorised and required the provision of after-care services to those persons falling within its ambit; and that, accordingly, since it contained no charging provision, authorities who provided accommodation in pursuance of their section 117 duty were not entitled to charge for it.

(WLR)