Law reports

CONTRACT

Racecourse owners' agreement to be bound by association rules - member requesting disclosure of report and supporting material from enquiry - association under no implied duty to disclose material and exercise of private power not subject to public law rules

Towcester Racecourse Co Ltd v The Racecourse Association Ltd: ChD (Mr Justice Patten): 23 October 2002

The claimant, which was a member of the defendant, applied for final judgment on its claim for a declaration that it was entitled to a full copy of the defendant's report (and any appendices or other supporting material) into allegations that the chairman of a working party set up by the defendant to promote the broadcasting of horse-racing on television, who was also the chairman of a company which owned 13 racecourses in the UK, had made an inappropriate approach to a television company.

The defendant cross-applied for final judgment in its favour on the basis that the claim had no reasonable prospect of success.

Timothy Higginson (instructed by Mishcon de Reya) for the claimant; Michael Beloff QC and Kate Gallafent (instructed by Herbert Smith) for the defendant.

Held, refusing the application and granting the cross-application, that the claimant's cause of action depended on the court finding a series of implied terms in the articles of association imposing duties upon the defendant in relation to its members; that, while such a term could be implied from the language of the articles as a whole, it was not possible to do so wholly from extrinsic circumstances, especially where the implied terms contended for completely altered the way that the association would be run; that no duty of care to the claimant resulted from the defendant's position as the body controlling the interests of racecourse owners; that the exercise of such a private power was not subject to the rules of public law; and that it was difficult to conceive of a rule of public policy which would require the court to find the existence of private law duties owed by the defendant to its members when the defendant and its members had expressly agreed that there should be no such duties owed.

COSTS

Acceptance of payment into court - payment in materially more advantageous than claimant's earlier part 36 offer - court having no power to award indemnity costs

Dyson Ltd v Hoover Ltd (No 2): ChD (Mr Justice Jacob): 21 October 2002

The claimant brought a claim against the defendant for damages for the infringement of its patent.

The claimant succeeded on liability [2001] Gazette, 5 April, 41; [2001] RPC 473.

The trial judge directed that there be an enquiry as to damages, which was compromised in October 2002 by the claimant's acceptance of the defendant's payment into court.

The claimant sought costs on the indemnity basis under rule 36.21 of the Civil Procedure Rules 1998 because, prior to the trial on the issue of liability, it had made and the defendant had rejected a part 36 offer of a lower sum than the defendant's payment into court which it had accepted.

David Kitchin QC and Guy Burkill QC (instructed by Olswang) for the claimant; Christopher Floyd QC and Mark Vanhegan (instructed by Weightman Vizards) for the defendant.

Held, awarding costs on the standard basis, that CPR rule 36.21 had no application where quantum had not been assessed by the court; that the court had no discretion to award costs other than on the standard basis following the acceptance of a payment in as, by operation of CPR rule 36.13(4), costs 'will be payable on the standard basis', on, among other things, the acceptance of a payment into court; that if the claimant felt that costs should be paid on the indemnity basis, the proper course of action was to continue negotiations and not accept the payment into court; and that, even if the court had discretion to award indemnity costs in those circumstances, it was a discretion which could not properly be exercised because it would be impossible to determine the reasonableness of rejecting the claimant's initial part 36 offer without going behind the parties' settlement.

Successful party deprived of costs - judge finding claimant morally at fault prior to proceedings - not to be deprived of costs unless misconduct relating to proceedings themselves

Hall v Rover Financial Services (GB) Ltd (t/a Land Rover Financial Services): CA (Lords Justice Tuckey and Longmore): 10 October 2002

The defendant finance company acquired a vehicle worth 50,000 and leased it to A Ltd.

Three months later, A Ltd purported to sell it to the claimant for 38,000.

The claimant provided 14,000 from her own bank account and the remainder was in cash provided by her partner who dealt mainly in cash so as to avoid tax.

The vehicle was registered in Jersey and there was a further charge of 1,500 for Jersey number plates.

The defendants seized the vehicle when A Ltd failed to maintain the payments.

The claimant brought a claim against the defendants pursuant to section 27 of the Hire Purchase Act 1964.

The judge awarded her 38,000 damages for conversion but refused her costs because he found that a reasonable person would have been suspicious but that the claimant was the sort of person who suffered from such moral blindness that she lacked natural suspicions that an ordinary person would have entertained.

The claimant appealed.

Roger Bartlett (instructed by Shah & Burke) for the claimant; Mark Sefton (instructed by Clarks, Reading) for the defendants.

Held, allowing the appeal, that there had to be a good reason to deprive a successful party of his costs and any misconduct had to relate to the proceedings themselves; that the claimant's conduct, while relevant to credit, did not relate to the proceedings themselves; that the position of the finance company was similar to that of an insurer who might have considerable evidence of dishonesty, but if the insured could prove the loss despite dishonesty, the insured would not normally be deprived of her costs; and that, accordingly, the claimant was entitled to costs.

EVIDENCE

Letter of request from foreign state for evidence in connection with criminal investigation - defendant exercising statutory power to obtain evidence from claimants and providing summary of issues raised - entitled to refuse to disclose letter of request

R (Evans and another) v Director of the Serious Fraud Office: QBD (Lord Justice Kennedy and Mr Justice Pitchers): 23 October 2002

Upon receipt of a letter of request from the United States Department of Justice for mutual legal assistance regarding a criminal investigation in New York, the Secretary of State for the Home Department requested that the defendant exercise her powers under section 2 of the Criminal Justice Act 1987 to obtain evidence from the claimants.

The claimants were served with notices pursuant to section 2(2), requiring them to provide information.

The claimants, concerned as to the legality of the notices and wishing to ensure that the information requested by the defendant was properly within the terms of the letter of request, sought disclosure of the letter of request.

The defendant provided the claimants with information about the nature of the criminal investigation that summarised the issues raised, but refused their request.

The claimant's sought judicial review of that refusal.

David Perry (instructed by Cooper Kenyon Burrows, Manchester) for the claimants; Khawar Qureshi (instructed by Treasury Solicitor) for the defendant.

Held, refusing judicial review, that a letter of request was confidential and not a disclosable document; that, nevertheless, justice had to be done to those subject to a notice under section 2(2) of the 1987 Act; that the needs of justice could normally be met, as they had been in this case, by giving a party requesting disclosure of a letter of request information as to the nature of the criminal investigation; but that, in some cases, justice might require more.

IMMIGRATION

Court of Appeal determining appeal from Immigration Appeal Tribunal on appeal from special adjudicator sitting in Glasgow - appeal lying to Court of Session only - Court of Appeal's decision a nullity

Gardi v Secretary of State for the Home Department (No 2): CA (Lords Justice Ward and Keene and Sir Martin Nourse): 22 October 2002

The applicant unsuccessfully claimed asylum in the UK.

Directions were given for his removal.

The special adjudicator allowed the applicant's appeal but the Immigration Appeal Tribunal allowed an appeal by the secretary of state.

The applicant appealed to the Court of Appeal which held ([2002] EWCA Civ 750; [2002] Gazette, 4 July, 33; [2002] 1 WLR 2755) that the applicant had not established his entitlement to refugee status but remitted the case to the tribunal on the ground that there had been a procedural error.

On remission, it was noticed that the special adjudicator had been sitting in Glasgow, whereupon the Court of Appeal reconsidered whether it had had jurisdiction to hear the appeal.

Held, that paragraph 23 of schedule 4 to the Immigration and Asylum Act 1999 provided for an appeal from the tribunal 'to the appropriate court' which, where the appeal was from the determination of an adjudicator made in Scotland, meant the Court of Session; that, therefore, the Court of Appeal had had no jurisdiction to entertain the appeal; and that, accordingly, the order dismissing the appeal was a nullity.

PRACTICE

Court making order without considering whether penal notice should be attached - defendant attaching penal notice to copy of order served on claimants - notice properly included and not to be deleted

The Anglo-Eastern Trust Ltd and another v Kermanshahchi: ChD (Mr Justice Park): 21 October 2002

By an order of the court, the claimants and the defendant had each been placed under separate obligations.

The question of whether a penal notice would be included with the order was not brought to the court's attention.

After the order had been sealed, the defendant's solicitor served a copy of the order with a penal notice attached.

By CPR schedule 1, and Rules of the Supreme Court, order 45, rule 7(4), the penal notice had to be displayed on the front of the copy of the order upon service if the order were to be enforceable by committal.

The claimants applied for, among other things, an order deleting the penal notice.

Andrew Latimer (instructed by Boote Edgar Esterkin, Manchester) for the claimants; Richard Slade, solicitor (of Bracher Rawlins) for the defendant.

Held, refusing the application, that the words in rule 7(4) seemed to suggest that the penal notice was not a part of the order itself but might be added to a copy of the order served under the rule; that, for rule 7(4) to be complied with such that enforcement by committal became possible, it was for the person who had created a copy of the order for service to attach the penal notice to it; and that, accordingly, the penal notice had been properly included in the copy of the order served on the claimants, notwithstanding that the court had not so ordered, and should not be deleted.

PROFESSIONS

Solicitors action to recover costs - defective bills - inadequate narrative supplemented by client's knowledge of dispute

Ralph Hume Garry v Gwillim: CA (Lords Justice Ward and Mance and Sir Martin Nourse): 22 October 2002

The defendant, an experienced solicitor embroiled in a partnership dispute, instructed the claimants, a firm of solicitors, to act for him.

They brought an action to recover outstanding fees for their professional charges.

The defendant applied for the claim to be struck out on grounds that the bills contained insufficient description of what was being charged, were not in proper form as required by section 64 of the Solicitors Act 1974 and did not comply with the strict requirements for remuneration in respect of contentious business in section 69 of the Act (action to recover costs).

The judge refused the application.

The defendant appealed.

Philip Newman, pro bono, for the defendant; Paul Girolami QC (instructed by Barlow Lyde & Gilbert) for the claimants.

Held, dismissing the appeal, that good practice and the Solicitors Act 1974 required bills submitted by solicitors to contain an adequate description of the work done; that issues as to sufficiency of narrative were matters of fact that would vary from case to case; and that the judge, being entitled to conclude that any insufficiency of description could be supplemented by the defendant's particular knowledge of the dispute, had been entitled to reject the application.