Law reports

CORONER

Inquest - burdens of inquest preventing coroner from carrying out other duties - coroner entitled to appoint deputy coroner

Comr of Police of the Metropolis v Inner South London Coroner: QBD (Lord Justice Kennedy and Mr Justice Pitchers): 31 October 2002

Following a fire in 1981, which resulted in the deaths of 13 people, an inquest took place examining its possible causes.

No definitive explanation could be given and open verdicts were recorded.

In 1997, the police enquiry was fully reopened and new evidence was discovered.

The commissioner applied, under section 13 of the Coroners Act 1988, for an order quashing the inquisitions taken before the coroner in 1981 and an order directing the holding of a new inquest.

Simon Freeland QC and Jason Beer (instructed by Director of Legal Services, Metropolitan Police) for the commissioner; Ian Burnett QC (instructed by Borough Solicitor, Southwark London Borough Council) for the coroner; James Goudie QC and Jason Coppel (instructed by Head of Law, Lewisham London Borough Council) for the New Cross Fire Parents Committee, an interested party; Charles Collins, an interested party, in person.

Held, granting the application, that the discovery of new facts or evidence had made it necessary and desirable in the interests of justice to hold a second inquest, and it was unnecessary to make a finding on the applicant's allegation that there had been insufficient inquiry at the first inquest; that, with regard to the coroner's concerns about the resource implications of a new inquest, section 7(1) of the 1988 Act, which provided that a deputy coroner might act for his coroner during the coroner's absence for any lawful or reasonable cause, enabled a deputy to act during the coroner's lawful absence from performance of his normal duties, for example, because of the carrying out of other coronial work; and that, accordingly, deputy coroners could assist with the just and expeditious disposal of the work of a coroner while the new inquest was being held.

COSTS

Discretion of court - claimant serving witness summons on employee of bank requiring production of documents belonging to bank - court having discretion to award bank costs of assisting employee to comply

Individual Homes Ltd v Macbream Investments Ltd: ChD (Mr Alan Steinfeld QC sitting as a deputy High Court judge): 23 October 2002

To advance its claim against the defendant, the claimant required the production of documents belonging to a bank.

The claimant served a witness summons under the Civil Procedure Rules 1998, part 34 on an employee of the bank requiring his attendance at the hearing of the action and the production of the bank's documentation.

Part 34 contained no express provision entitling a summoned witness or his employer to be paid for work carried out in complying with the summons, whereas if the claimant had used the more appropriate procedure under section 34 of the Supreme Court Act 1981 and CPR rule 31.17 the bank would have been entitled to its costs.

The bank made the documentation available but the claimant refused to give an undertaking to pay the costs of compliance.

After the first day of the hearing, the claimant informed the bank that it no longer required the attendance of the employee.

The bank applied to be joined as a party to the proceedings, for the purposes of costs, and for a costs order in its favour.

Richard Edwards (instructed by Wragge & Co, Birmingham) for the bank; Christopher Spratt (instructed by Garbett & Singleton, Dover) for the claimant.

Held, granting the applications, that the court had jurisdiction by virtue of its general discretion regarding costs under section 51 of the 1981 Act and CPR rule 48.2 to make a costs order against a party to proceedings in favour of a non-party; that it was anomalous that, on an application under section 34, the rules specifically provided for the party against which the order was made to recover the costs of compliance, whereas there was no equivalent provision in CPR part 34 to enable a witness to recover his costs of complying with a summons; and that, since courts of first instance had jurisdiction to award costs where it was just and reasonable, the bank would be joined to the proceedings for the purposes of costs and the claimant would be ordered to pay the costs incurred by the bank in assisting the employee to comply with the summons.

CRIMINAL

Confiscation of realisable assets of drug trafficking - house subject to outstanding mortgage liability - only value of equity of redemption to be included in confiscation order

R v Walls (Andrew): CA (Lord Justice Judge, Mr Justice Butterfield and Judge David Clarke QC): 30 October 2002

The appellant pleaded guilty to an offence of conspiracy to supply a controlled drug.

A confiscation order was made under the Drug Trafficking Act 1994 in respect of the proceeds of his drug trafficking, which included the gross value of a house he owned.

He appealed against the amount of the order on the grounds that the value of the house should have been taken to be only the equity of redemption, after deducting the outstanding mortgage liability, rather than the gross value.

Rudi Fortson (instructed by Kaim Todner) for the appellant; James Dennison (instructed by the Crown Prosecution Service, Ludgate Hill) for the Crown.

Held, allowing the appeal, that the confiscation provisions in the 1994 Act operated differently from those in the Criminal Justice Act 1988; that R v Johnson [1991] 2 QB 249, decided under the Drug Trafficking Offences Act 1986 (as amended by the Drug Trafficking Act 1994), was indistinguishable and binding, particularly since section 7(4) of the 1994 Act was similar in terms to section 5(4) of the 1986 Act; that, applying section 4(4) of the 1994 Act, the required assumption was shown to be incorrect in that the house had been purchased with money provided by the building society, and so only the net equity of redemption was liable to confiscation under section 4; and that the amount of the confiscation order would be reduced accordingly.

DISCRIMINATION

Disability - duty to make adjustments - employer failing to consider reasonable adjustments - employee unable to work at all - failure to comply with duty justified

Jangra v Gate Gourmet Ltd: EAT (Judge Burke QC, Mrs M McArthur and Ms B Switzer): 25 October 2002

In May 1996, the applicant sustained a cut finger at work from which she developed severe complications requiring her to be off work until November 1996 and again from February 1997 until her dismissal by reason of incapacity in September 1997.

The applicant issued proceedings for disability discrimination in the Employment Tribunal.

Judgment was entered in her favour in February 1999.

The respondent appealed to the Employment Appeal Tribunal, which allowed the appeal in part in December 2000.

The tribunal held that the respondent had discriminated against the applicant but remitted the question of justification to a differently constituted tribunal, which found in the respondent's favour in March 2001.

The applicant appealed on the basis that in holding that the discrimination had been justified (because the failure to consider reasonable steps would have made no difference) the tribunal had erred because it could not take into account matters occurring after the date of dismissal and/or because a finding that further steps by the respondent would have made no difference went to causation but not to justification.

Daniel Barnett (instructed by K E Davis & Sons, Hayes) for the applicant; Martyn Barklem (instructed by Clarks, Reading) for the respondent.

Held, dismissing the appeal, that under section 5(5) of the Disability Discrimination Act 1995, the tribunal had to apply a three-step test to the question of justification: was the employer under a duty to make adjustments; if so, had the employer complied with that duty and if not, could the treatment of the employee have been justified had the employer complied with its duty under section 6 of the 1995 Act?; but by September 1997, the respondent had concluded that the applicant would be incapable of performing any job which the respondent could have found for her and dismissed her accordingly; that the respondent had complied with its duty under section 6 of the 1995 Act by so doing; that the tribunal further found that section 5(5) of the 1995 Act did not prevent the respondent from being able to justify the decision to dismiss; that having dealt with section 5(5) already, the tribunal reasonably found that the dismissal was justified under section 5(3) of that Act; and that it was not necessary to consider whether the respondent was entitled to consider events which took place after the discriminatory act.

NATIONAL SECURITY

Detention of non-national suspected international terrorists - derogation from convention right to liberty - objectively justified and lawful

A and others v Secretary of State for the Home Department: CA (Lord Woolf Chief Justice, Lords Justice Brooke and Chadwick): 25 October 2002

Section 23 of the Anti-terrorism, Crime and Security Act 2001 empowered the home secretary to detain non-nationals residing in the UK if he suspected that they were terrorists and if, for the time being, they could not be deported because of fears for their safety.

Eleven detainees appealed.

The Special Immigration Appeals Commission held that there was a public emergency threatening the life of the nation and that, therefore, the government had been entitled, under article 15 of the European Convention on Human Rights, to derogate from its obligations under the convention to the extent strictly required by the exigencies of the situation; but quashed the Human Rights Act 1998 (Designated Derogation) Order 2001, which proposed the derogation from the right to liberty under article 5(1) of the convention in respect of section 23 of the 2001 Act, and granted a declaration that section 23 was incompatible with articles 5 and 14 of the convention in so far as it permitted the detention of suspected international terrorists in a way which discriminated against them on the ground of nationality.

The home secretary appealed.

The Attorney-General Lord Goldsmith QC, Ian Burnett QC, Philip Sales and James Eadie (instructed by the Treasury Solicitor) for the home secretary; Ben Emmerson QC and Raza Husain (instructed by Birnberg Peirce & Partners) and Manjit Gill QC, Stephanie Harrison and Adrian Berry (instructed by Tyndallwoods, Birmingham) for the detainees; David Pannick QC, Rabinder Singh QC and Murray Hunt (instructed by the solicitor, Liberty) for Liberty, intervening.

Held, allowing the appeal, that the commission had been entitled to conclude that there existed a public emergency threatening the life of the nation within article15; that the court had to accord considerable deference to, and was unable to differ from, the home secretary's conclusion that the action which was required in the interests of national security was limited to removing or detaining suspected terrorists who were not nationals with unconditional rights of abode in the UK; that article 15 restricted the extent of any derogation from the convention to what was strictly necessary and, therefore, the home secretary would be debarred from taking action to detain nationals as well as non-nationals since, on his assessment of the situation, that was not strictly necessary; that there were objectively justifiable and relevant grounds for selecting only non-national suspected terrorists as the subject of the 2001 order and Act which did not involve impermissible discrimination, since non-nationals who could not be deported had no right to remain, only a right not to be removed, and, therefore, came into a different class from those who had a right of abode; that the approach adopted in the 2001 Act, which involved detaining the suspected terrorists for no longer than was necessary before they could be deported, or until the emergency resolved, or they ceased to be a threat to the safety of this country, was one which could be objectively justified; that by limiting the number of those who were subject to the special measures, the home secretary was ensuring that his actions were proportionate to what was necessary; that, accordingly, the home secretary was entitled to detain only non-national suspected terrorists; and that the proceedings before the commission did not contravene article 6 and the scheme of detention adopted by the 2001 Act did not contravene article 3 (WLR).

NATURAL JUSTICE

Judicial bias - part-time Employment Appeal Tribunal judge appearing before tribunal as counsel - no real possibility of bias

Lawal v Northern Spirit Ltd: CA (Lord Phillips of Worth Matravers MR, Lords Justice Pill and Mummery): 30 October 2002

A recorder, one of five part-time judges appointed to the Employment Appeal Tribunal, appeared for the respondent employers at the hearing of the applicant's appeal before a judge and two lay members, one of whom had previously sat with the recorder in the Employment Appeal Tribunal.

The applicant objected that the composition of the court gave rise to a real possibility of bias.

The matter was relisted for hearing before the president and two other lay members, neither of whom had sat with the recorder.

The appeal tribunal, among other things, rejected the applicant's contention that lay members of the appeal tribunal might be subconsciously biased in favour of the advocate who was a colleague and to whom in that capacity they had looked for guidance on the law.

The applicant appealed.

The claimant in person; Sarah Moore (instructed by the Treasury Solicitor) as advocate for the court; Philip Sales (instructed by the Treasury Solicitor) for the Lord Chancellor's Department as an interested party.

Held, dismissing the appeal by a majority (Lord Justice Pill dissenting), that there was no real possibility of bias arising when an advocate appearing for a party had sat on a previous occasion as a part-time judge at the appeal tribunal with one of the two lay members sitting with a judge to hear the appeal; and that, accordingly, the appearance before the tribunal on behalf of the applicant's employers of counsel who had previously sat as a part-time judge at the tribunal with one of the lay members hearing the appeal did not breach the applicant's right to a hearing by an impartial tribunal under article 6(1) of the European Convention on Human Rights as scheduled to the Human Rights Act 1998 or his common law right to an unbiased judge.

PRACTICE

Entire action stayed on claimant's refusal to comply with master's order for examination by psychiatrist - Court of Appeal granting permission to appeal limited to single ground - no jurisdiction to rehear application on rejected grounds but extent of stay reduced

James v Baily Gibson & Co (a firm): CA (Lords Justice Judge and May): 30 October 2002

The claimant brought an action against the defendants, her former solicitors, for negligence in the conduct of litigation.

The defendants admitted liability.

Judgment was entered for the claimant for damages to be assessed.

On the question of the value of the claimant's lost chance the master ordered the claimant to attend a psychiatrist for examination.

The claimant refused to attend, whereupon the judge stayed the entire action.

A single judge of the Court of Appeal at an oral hearing granted the claimant permission to appeal, limited to an issue under article 6(1) of the European Convention on Human Rights as to whether the claimant's right to a fair trial had been breached, but refused permission on several other grounds.

At the hearing of the appeal the claimant renewed her application for permission on the other grounds.

The claimant in person; Charles Brown (instructed by Henmans, Oxford) for the defendants.

Held, refusing permission but allowing the appeal in part, that, on a true construction of section 54(4) of the Access to Justice Act 1999 and of CPR rule 52.3.7, where the Court of Appeal had granted permission to appeal limiting the issue or subject to one condition, that court had no power to rehear the application on issues which it had already rejected at the earlier hearing; that the claimant, who had brought the action, had a duty to co-operate with the defendant to prosecute the action and, therefore, the judge had been right to impose a stay for the claimant's refusal to attend the psychiatrist; but that the extent of the stay in respect of all heads of damages was unjust and contrary to article 6, and the stay would be varied accordingly.

REVENUE

Search warrant - seizure of computers containing material relevant to criminal proceedings - computers also containing irrelevant material - seizure lawful

R (H) v Commissioners of Inland Revenue: QBD (Mr Justice Stanley Burnton): 23 October 2002

Officers of the Inland Revenue went to the home address of the claimant and executed a warrant issued under section 20C of the Taxes Management Act 1970, as substituted by schedule 6 to the Finance Act 1976.

The information which was of interest to the officers was contained on the hard drives to two computers.

It was impossible to copy the hard drives, a computer belonging to the claimant and a PC used by his son, and both computers were removed by the officers.

The claimant applied for judicial review on the ground that section 20C of the 1970 Act did not confer authority on the officers to copy the entirety of the hard drive of the computer.

Alan Newman QC and Graham Brodie (Burton Copeland) for the claimants; Nicholas Ainley (Solicitor of Inland Revenue) for the Commissioners of Inland Revenue.

Held, dismissing the application, that the computer was a 'thing' within the meaning of section 20C(3)(b) of the 1970 Act; that a hard disk could not be regarded as simply a container of the files visible to the computer's operating system; that the fact that there was also on the hard disk material that was irrelevant, and not evidence of anything, did not make the computer less of a thing that may be required as evidence for the purposes of criminal proceedings; and that accordingly, the Inland Revenue officer had authority to seize and remove a computer where he had reasonable cause to believe that the data on the computer's hard disk maybe relevant for criminal proceedings, even though it also contained material irrelevant for that purpose.

ROAD TRAFFIC

Royal parks - prohibition on trade vehicles applying to private hire vehicles but not black cabs - no breach of convention rights

Phillips v Director of Public Prosecutions: QBD (Lord Justice Latham and Mr Justice McCombe): 28 October 2002

The Crown Court dismissed an appeal by the defendant against his conviction of an offence committed contrary to regulation 4(27) of the Royal Parks and Other Open Spaces Regulations 1997 (SI 1997/1639) when driving a private hire vehicle through St James's Park.

The defendant brought an appeal by way of case stated on the grounds, among other things, that the prohibition infringed the right to property in article 1 of the first protocol to the European Convention on Human Rights, as scheduled to the Human Rights Act 1998, and was discriminatory and thereby contravened article 14 of the convention.

Rhodri Thompson QC (instructed by Marriott Harrison) for the defendant; David Perry (instructed by the Crown Prosecution Service, Westminster) for the Director of Public Prosecutions.

Held, dismissing the appeal, that regulation 4(27) made it an offence to drive or ride any vehicle which was constructed, adapted or in use for the purpose of a trade or business except as specified in part 1 of schedule 2 to the regulations; that article 1 of the first protocol was not engaged by the prohibition; that, had it been so engaged, the prohibition would have been proportionate and justifiable as pursuing a legitimate aim; and that the exception afforded by the regulations to black cabs was not impermissibly discriminatory since they were a traditional feature of the London scene and very different from other trade vehicles.

TORT

Bailment - stolen painting - painting bailed to auctioneer for sale - true owner alleging conversion against auctioneer - good faith - burden of proof on bailee to establish good faith

Marcq v Christie Manson & Woods Ltd: QBD (Mr Justice Jack): 29 October 2002

A painting was stolen from the claimant in 1979.

A third party bought the painting in 1994 and in 1997 bailed it to the defendant for sale at auction.

The painting failed to reach its reserve price and was returned to the third party in 1999.

The claimant brought a claim against the defendant seeking damages for conversion.

On 25 January 2002 Judge Hallgarten, sitting at the Central London County Court, ordered, on the application of the defendant, that the claim be struck out on the basis that it had no reasonable prospect of success.

The claimant appealed, alleging either that the defendant's contractual assertion of a right to a lien as against the vendor meant that the defendant had interfered sufficiently with the rights of the claimant to give rise to a claim for conversion or alternatively that, contrary to the view expressed by Judge Hallgarten below, the burden of proof was on the defendant to establish that it had no notice of the claimant's title.

Norman Palmer (instructed by Ralph Davis) for the claimant; John McCaughran and Zo O'Sullivan (instructed by Stephenson Harwood) for the defendant.

Held, allowing the appeal in part, that there was no case on conversion where an auctioneer had been held liable where there was not a sale with which he was involved; that a contractual right to a lien was insufficient for that purpose because what mattered was not the taking of powers by a bailee against his consignor but the exercise of those powers, with the result that the positive act of withholding possession from the true owner was required; that the claim based on the lien was, therefore, to be dismissed; but that where a party took possession of the goods of another and dealt with them in a manner which would not generally amount to conversion, he could nevertheless be liable in conversion if he did not act in good faith and without notice; that since the person in possession of goods knew where and how he acquired them, it was up to him to establish that he was innocent of any wrongdoing; and that in the circumstances, since the claimant had raised a number of issues which could not be dealt with, he would be given 21 days to apply to the county court for permission to serve a reply out of time.

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