Law reports

Law reports

ADMINISTRATIVE

Duty to give reasons - statutory body deciding between competing applications for capital grants - decision not amenable to further elucidation

R (Asha Foundation) v Millennium Commission: CA (Lord Woolf Lord Chief Justice, Lady Justice Hale and Lord Justice Latham): 16 January 2003

The Millennium Commission refused the claimant's application for a capital grant, saying that, in the light of the competition, the claimant's application was less attractive than others.

The claimant sought judicial review on the ground that the commission had failed in its duty to give adequate reasons for its decision.

Mr Justice Lightman [2002] EWHC 916 (Admin); [2002] Gazette, 20 June, 34, dismissed the claim.

The claimant appealed.

Richard Gordon QC and Michael Fordham (instructed by Sheridans) for the claimant; Philip Havers QC and Nathalie Lieven (instructed by Treasury Solicitor) for the commission.

Held, dismissing the appeal, that when making a decision on an application for a grant under section 41 of the National Lottery Etc Act 1993, the commission should give such reasons as were appropriate and reasonable in the circumstances, both as a matter of good administration and of fairness; that the commission should give details of the extent to which any application did not comply with its eligibility criteria; but that where a decision to refuse an application was based on an assessment of the competitive qualities of the applications before it, it was sufficient for the commission simply to record that other applications were preferred; that to require the commission to do more would place an undue burden upon it and would be impracticable as a matter of good administration; and that a statement by the commission in its grant application pack that it would explain why an application was rejected amounted to no more than a promise to give reasons which were appropriate in the circumstances.

ARBITRATION

Two disputes between same parties referred to different arbitrators - confidentiality provision in earlier award - no bar to reliance on earlier award in later arbitration

Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich: PC (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett and Sir Christopher Staughton): 29 January 2003

Two disputes concerning the defendant's obligation to indemnify the claimant under a reinsurance agreement were referred to arbitration before different panels.

In the earlier arbitration, the agreed procedural directions included an express confidentiality provision for the result not to be disclosed to non-parties.

The claimant relied on that to obtain an injunction preventing the defendant relying on the earlier award to found a plea of issue estoppel in the later arbitration.

The Court of Appeal of Bermuda allowed the defendant's appeal and discharged the injunction.

The claimant appealed to the judicial committee of the Privy Council.

Stephen Moriarty QC, Narinder Hargun and Henry King (instructed by LeBoeuf Lamb Greene & Macrae) for the claimant; VV Veeder QC and Paul Stanley (instructed by Sedgwick Detert Moran & Arnold) for the defendant.

Held, dismissing the appeal, that the confidentiality provision had to be evaluated against the surrounding circumstances and the principles and purpose of arbitration; that the legitimate use of the earlier award in a later private arbitration between the same parties did not raise the mischief against which the provision was directed; that to prohibit any disclosure of the award would frustrate the purposes of the arbitration by preventing the winner enforcing the rights declared in its favour; and that such enforcement could legitimately include relying on the award to found a plea of issue estoppel in the later arbitration.

(WLR)

CHILDREN

Family proceedings - statutory duty on CAFCASS to make officer available for appointment as children's guardian if requested by court - duty not required to be discharged immediately on receipt of court's request but as soon as practicable

R (R (Children)) v Children and Family Court Advisory Support Service; R (P (A Child)) v Children and Family Court Advisory Support Service: QBD (Mr Justice Charles): 17 January 2003

The claimants in each case, who were involved in care proceedings, sought judicial review of the failure of the defendant to provide children's guardians for court hearings in May 2002, contending that it was under an absolute statutory duty to make an officer available for appointment as a children's guardian immediately on receipt of the request by the court.

Robin Spon-Smith (instructed by Harman & Harman, Canterbury) for the applicants in the first case; Stephen Cragg (instructed by Harman & Harman, Canterbury) for the applicant in the second case; Nigel Giffin (instructed by Treasury Solicitor) for the defendant.

Held, dismissing the claims, that the statutory obligation on the defendant to make an officer available to be appointed as a children's guardian when a court so requested did not have to be discharged immediately since the relevant legislation which included, among other things, the Criminal Justice and Court Services Act 2000, the Children Act 1989 and the Family Proceedings Rules 1991, pointed instead to the conclusions that there could be a gap between the request made by the court and the defendant making an officer available for appointment as the children's guardian, and that the defendant should respond as soon as practicable after the request had been made.

CONTEMPT OF COURT

Defendant in civil proceedings for contempt alleging duress - duress constituting mitigation not defence - legal burden of proof on defendant

Coca-Cola Co and another v Aytacli and others: ChD (Mr Justice Peter Smith): 30 January 2003

The claimant applied to commit the defendant to prison for contempt of court consisting of breaches by the defendant of court orders.

The defendant sought to raise a defence of duress.

Peter Leaver QC and Philip Roberts (instructed by Willoughby & Partners) for the claimant; Bernard Richmond and Mark Tempest (instructed by Bankside Law Ltd) for the defendant.

Held, granting the application, that the defendant had committed serious breaches of the court orders and, even on a purely evidential burden, none of the supposed duress had been made out; and that, in any event, in civil proceedings for contempt the legal burden of proof in establishing the existence of duress, which notwithstanding the passing of the Human Rights Act 1998 was not a defence but merely mitigation, lay with the defendant.

CONTRACT

Building contract - employer failing to fulfil contractual obligation to take out insurance policy in joint names of employer and contractor - contractor not liable for loss caused by sub-contractor's negligence

Scottish & Newcastle plc v GD Construction (St Albans) Ltd: CA (Lords Justice Ward and Longmore and Mr Justice Aikens): 22 January 2003

Under a standard form building contract the employer undertook to take out a joint names insurance policy for specified perils, including fire.

The employer failed to do so and consequently as a result of negligence on the part of a sub-contractor the building was damaged by fire.

The employer claimed damages against the contractor for breaches of contractual and common law duties of care.

On the hearing of a preliminary issue, the judge held that, notwithstanding its omission, the employer was entitled to claim against the contractor.

The contractor appealed.

Graham Eklund QC (instructed by Hill Dickinson) for the contractor; Marcus Taverner QC (instructed by Vizards Wyeth) for the employer.

Held, allowing the appeal, that the parties had agreed to exclude liability of the contractor for loss from fire, the employer having a contractual obligation to take out a joint names insurance policy; that the contractual scheme was to divide risk, allocating to the employer fire risk to be covered by the insurance; and that, accordingly, since the contract clearly provided that the contractor should not be responsible for fire, the contractor could not be held liable to the employer for damages for reinstatement and repair.

(WLR)

COSTS

Order for costs - litigant's improper behaviour - court's disapproval reflected in costs order

Jones v University of Warwick: CA (Lord Woolf Lord Chief Justice, Lady Justice Hale and Lord Justice Latham): 4 February 2003

The claimant sought damages from the defendant for personal injury.

The defendant admitted liability but disputed that the claimant had the continuing disability which she alleged.

An inquiry agent, acting for the defendant's insurers, obtained access to the claimant's home by posing as a market researcher and used a hidden camera to film her without her knowledge.

The claimant applied for the resulting video to be excluded from evidence at the trial, pursuant to the court's discretion under CPR rule 32.1(2), because of the breach of her right to privacy under article 8 of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998.

The district judge ruled that the video evidence should be excluded but the judge reversed that ruling.

The claimant appealed.

Robert Weir (instructed by Irwin Mitchell, Birmingham) for the claimant; Robert Owen QC (instructed by Buller Jeffries, Coventry) for the defendant.

Held, dismissing the appeal, that the court had to try to give effect to two conflicting public interests, namely that in litigation the truth should be revealed and that the courts should not acquiesce in, let alone encourage, a party to use unlawful means to obtain evidence; that the weight to be attached to each of those interests would vary according to the circumstances; that under the Civil Procedure Rules 1998, a judge, in managing litigation, had to consider the effect of his decisions on litigation generally and, while doing justice between the parties in a particular case, he should seek to deter improper conduct by litigants; that, in the present case, the court could not ignore the reality of the situation, which was that the conduct of the defendant's insurers was not so outrageous that the defence should be struck out and, therefore, the case had to be tried; that to exclude the video evidence would create a wholly undesirable situation since fresh medical experts would have to be instructed, evidence which was relevant would have to be concealed from them, and it would not be possible to cross-examine the claimant appropriately; that, therefore, it would not be right to interfere with the judge's decision; but that the court could reflect its disapproval of the insurers' improper and unjustified conduct in the orders for costs which it made and, therefore, the defendant should pay the costs of resolving the issue as to the admissibility of the video evidence; and that, in addition, the trial judge, when dealing with costs, should take into account the defendant's conduct and he might consider that the costs of the inquiry agent should not be recovered and, if he concluded that there was an innocent explanation for what was shown in the video, that should be reflected in costs, perhaps by ordering the defendant to pay the costs throughout on an indemnity basis.

See [2003] Gazette, 13 March, 26.

(WLR)

CRIMINAL

Juvenile convicted of murder - sentence of detention during governor-general's pleasure unconstitutional - sentence of detention during court's pleasure substituted

Director of Public Prosecutions v Mollison: PC (Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Clyde, Lord Hutton and Lord Walker of Gestingthorpe): 22 January 2003

The defendant was convicted of a murder committed while he was aged 16 and sentenced under section 29(1) of the Juveniles Act 1951 to detention during the governor-general's pleasure.

On appeal against sentence, the Court of Appeal of Jamaica ruled that section 29 was unconstitutional and substituted a sentence of life imprisonment.

The Director of Public Prosecutions of Jamaica appealed and the defendant cross-appealed against the life sentence.

Seven other persons sentenced under section 29(1) were permitted to intervene.

Kent Pantry QC, Director of Public Prosecutions of Jamaica, Michael Hylton QC, Solicitor-General of Jamaica and Ingrid Mangatal, Deputy Solicitor-General of Jamaica (instructed by Charles Russell) for the director; Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Simons Muirhead & Burton) for the defendant; Dr Lloyd Barnett (of the Jamaican Bar) (instructed by Simons Muirhead & Burton) for the interveners.

Held, dismissing the appeal and allowing the cross-appeal, that by giving the governor-general, as an officer of the executive, the power to determine the measure of an offender's punishment, section 29 infringed the principle of the separation of powers implicit in all constitutions on the Westminster model; that section 29 ought, therefore, to be modified, using the power in section 4(1) of the Jamaica (Constitution) Order in Council 1962, so as to conform to the constitution by substituting 'the court' for 'Her Majesty' or 'the governor-general'; and that, accordingly, the defendant's sentence should be one of detention during the court's pleasure, so that it would be for the court, and not the governor-general, to determine whether he should be released on licence under section 29(4).

(WLR)

DISCRIMINATION

Claimant bringing complaint of racial discrimination nine years after act complained of - tribunal exercising discretion to extend time as just and equitable - tribunal not required to hear substantive complaint before ruling on extension of time

Afolabi v Southwark London Borough Council: CA (Lords Justice Peter Gibson, Sedley and Rix): 24 January 2003

The employee brought a complaint of racial discrimination against the council more than nine years after the act of which he complained.

He also made two other complaints.

The employment tribunal granted him an extension of time and found for him on his three complaints.

The council appealed.

The Employment Appeal Tribunal dismissed its appeal.

The council appealed.

Stephen Fletcher (instructed by Borough Solicitor, Southwark London Borough Council) for the council.

The employee in person.

Held, dismissing the appeal, that an employment tribunal faced with a complaint of racial discrimination presented out of time had a discretion, under section 68(1)(a) of the Race Relations Act 1976, to extend time as just and equitable; that the discretion was to be exercised in all the circumstances of the case, but the tribunal was not required to hear the substantive complaint, or to go through a check-list of matters such as those listed in section 33(3) of the Limitation Act 1980, before deciding whether to extend time; that Parliament had envisaged that complaints within the jurisdiction of the tribunal would be determined within a short space of time after the events complained of, and it would be an extremely rare case where the tribunal could properly decide that there could be a fair trial so long after those events; that in the present case, however, it could not be shown that the tribunal, on the material before it, had erred in law in concluding that the passage of time was equally prejudicial to both parties; and that, accordingly, there was no basis for interfering with its exercise of discretion.

IMMIGRATION

Statute introducing fast track for prompt removal of asylum claimants with clearly unfounded claims - claimants dealt with under procedure before statute promulgated - no unfairness

R (L and another) v Secretary of State for the Home Department and another: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Waller and Sedley): 24 January 2003

The claimants, a mother and son from the Czech Republic, claimed asylum as soon as they reached the UK on 8 November 2002.

Their claims were dealt with under section 115 of the Nationality, Immigration and Asylum Act 2002, which had been passed on 7 November 2002, and brought into immediate effect.

They were interviewed, their claims were rejected, certificates were issued under section 115(6) that their claims were clearly unfounded, and they were issued with removal directions before the Act was promulgated on 28 November.

The claimants' application for permission to claim judicial review was refused.

They appealed.

Frances Webber and Louise Hooper (instructed by Morgan Hall, Ilford) for the claimants; Monica Carss-Frisk QC and Samantha Broadfoot (instructed by the Treasury Solicitor) for the secretary of state and the Lord Chancellor's Department.

Held, refusing permission to apply for judicial review, that the consideration of asylum claims under the fast track procedure in section 115 of the 2002 Act immediately after it was passed and before its publication might have resulted in injustice but the right to apply for judicial review cured any unfairness which would otherwise have resulted; that the section 115 procedure for applicants from countries where claims were certified to be clearly unfounded afforded adequate opportunity for asylum claimants to demonstrate that they had an arguable case; and that, pursuant to Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, paragraph 6.1, the judgment could be relied on as authority.

(WLR)

INSURANCE

Vessel detained following discovery of cocaine on board becoming constructive total loss - underwriters relying on clause in war risks insurance policy excluding loss arising from detainment by reason of infringement of 'customs regulations' - exclusion applying and liability avoided

Sunport Shipping Ltd and others v Tryg-Baltica International (UK) Ltd: CA (Lords Justice Peter Gibson, Clarke and Scott Baker): 24 January 2003

The first claimant's vessel was detained in Greece following the discovery of cocaine concealed in a sea chest and became a constructive total loss.

The claimants sued on a war risks insurance policy which incorporated the Institute Strikes Clauses, Hulls-Time of 1/10/83.

Clause 4.1.5 excluded cover for 'loss ...

arising from ...

detainment ...

by reason of infringement of any customs or trading regulations.' The judge (see [2002] Gazette, 18 April, 38; [2002] All ER (Comm) 350) held that the detainment was by reason of infringement of customs regulations and found for the defendant underwriters who had subscribed to the insurance.

The claimants appealed.

Stephen Morris QC and Andrew Baker (instructed by Clyde & Co) for the claimants; Michael Thomas QC and Philippa Hopkins (instructed by Ince & Co) for the underwriters.

Held, dismissing the appeal, that the judge's construction of the clause was correct in the light of the ordinary meaning of the expression 'customs regulations' in an international contract, the improbability of the Institute Clauses excluding detention caused by infringement of regulations which imposed import duties but including detention caused by infringement of regulations which prohibited import of the same goods altogether, and the fact that the wording of clause 4.1.5 which had been construed in Panamanian Oriental Steamship Corporation v Wright (The Anita) [1971] 1 Lloyds Rep 487, had been retained and expanded in the 1983 edition of the Institute Clauses.

LAND

Common land - driving of vehicles criminal offence - owners of abutting properties incapable of acquiring right of way with vehicles by prescription

Bakewell Management Ltd v Brandwood and others: CA (Lord Justice Ward, Lady Justice Arden and Mr Justice Sullivan): 30 January 2003

In 1986, the claimant acquired common land to which the public had access on foot.

Section 193(4) of the Law of Property Act 1925 made it an offence for any person without lawful authority to drive on common land.

The defendants, owners of properties abutting the common, had to drive over it to gain access to their homes and had done so for many years without having acquired any permission to do so.

Mr Justice Park [2002] EWHC 472 (Ch); [2002] Gazette, 10 May, 30, granted the claimant, who was seeking to make money from the defendants, a declaration that the defendants were not entitled to drive vehicles on the common.

The defendants appealed.

Paul Morgan QC and Janet Bignell (instructed by Berger Oliver) for the defendants; Hazel Williamson QC and Leslie Blohm (instructed by Darwin Gray) for the claimant.

Held, dismissing the appeal, that the defendants, having enjoyed continuous access for over 20 years, claimed entitlement as of right at all times to rights of way with motor vehicles; that Hanning v Top Deck Travel Group Ltd [1993] Gazette, 9 June, 68; P & CR 14, CA, where it was held that prescriptive rights over land could not be acquired by conduct which was prohibited by statute, was indistinguishable on its facts and applied to the defendants' illegal activity of driving over the common; and that, accordingly, the defendants had no entitlement to any right of way with vehicles to access their properties.

Easement of parking - strip of wasteground belonging to claimant used by employees of defendant to park cars - right to park unlimited number of cars on land incapable of existing as an easement

Central Midlands Estates Ltd v Leicester Dyers Ltd: ChD (Mr Robert Englehart QC): 21 Jaunary 2003

The claimant and the defendant owned adjoining land on an industrial estate.

Some workers at the defendant's factory used a small strip of the claimant's land between the access road to the claimant's premises and the defendant's premises to park their cars on while they were at work.

The defendant, claiming title to the strip of land by adverse possession, or alternatively an easement of parking over the land, applied to the Land Registry for its alleged interests to be registered.

The Land Registry refused.

The defendant registered a caution on the claimant's title.

The claimant applied to the court for the caution to be vacated.

Bryan McGuire (instructed by Bakewells, Derby) for the claimant; Steven Gasztowicz (instructed by Johar & Co, Leicester) for the defendant.

Held, ordering the vacation of the caution, that although parking cars on land might in certain circumstances be sufficient to demonstrate the taking of possession, for example, where the adverse possessor fenced off the land and parked cars on it, the defendant's use was insufficient to establish factual possession of, and/or an intention to possess, the land; and that, while an easement of parking could exist as a matter of law in appropriate circumstances, following Batchelor v Marlow [2001] EWCA 1051; 82 P&CR 459, the right to park an unlimited number of vehicles on a piece of land, limited only by the availability of parking space, was incapable of existing as an easement because such a right would render the claimant's ownership of the land entirely illusory.

LAWYERS

Solicitor - Law Society intervening in practice - intervention justified under statute - no breach of human rights

Holder v Law Society: CA (Lords Justice Aldous and Carnwath and Sir Christopher Staughton): 24 January 2003

The solicitor had not maintained any client account records for 14 months and there was an agreed minimum cash shortfall of 200,000 in the client account.

The Law Society intervened in the practice.

The solicitor applied for an order to withdraw the notice.

The Law Society applied for summary judgment.

Master Price dismissed the solicitor's claim.

Mr Justice Peter Smith allowed the solicitor's appeal and directed that the claim should go to trial.

The Law Society appealed.

Timothy Dutton QC and Nicholas Peacock (instructed by Wright Son & Pepper) for the Law Society; Philip Engelman and Roger Pezzani (instructed by Teacher Stern Selby) for the solicitor.

Held, allowing the appeal, that the intervention procedure was long established and had been reviewed by the courts on many occasions; that while it was recognised as draconian in some respects, it was necessary for the protection of the public interest; that the courts had repeatedly emphasised the balancing exercise which it involved; that there was no difference between that and the fair balance required by article 1 of the Human Rights Act 1998; that the judge had found that by reference to the Solicitors Act 1974 the intervention was entirely justified and that should have led him to have upheld the Society's view as to where the balance lay.

(WLR)

MEDIA

Practice - strike out application - defendants destroying evidence before and after commencement of action - claimants contending fair trial not possible - criteria for striking out defences

Douglas and others v Hello! Ltd and others (No 2): ChD (Sir Andrew Morritt V-C): 27 January 2003

The claimants sought an order striking out the defences of the first three defendants on the ground, among other things, that they had destroyed documents both before and after the commencement of the action, and that in doing so they had put the fairness of the trial in jeopardy.

Michael Tugendhat QC, David Sherborne and Anthony Smith (instructed by Theodore Goddard) for the claimants; James Price QC and Giles Fernando (instructed by Charles Russell) for the first, second and third defendants; Paul Fallon, solicitor (Reed Smith) for the fourth and fifth defendants.

Held, making no order on the application, that there was a distinction to be drawn between documents which were destroyed before proceedings were commenced and those which were destroyed thereafter; that where the strike out application related to pre-action destruction the criterion for the court's intervention was whether the destruction amounted to an attempt to pervert the course of justice; that after the commencement of the proceedings, the court was concerned with whether the destruction constituted a transgression of the rules, if so whether a fair trial was achievable and, if not, what to do about it; but that there was no need for the court to consider whether, in destroying the documents, the defendants had the mens rea required to establish a contempt of court; that there was no evidence to suggest that destruction of documents before the action was an attempt to pervert the course of justice; and that, in the circumstances, the defendants conduct after the commencement of the action was not such as to justify striking out the defences.

POLICE

Disciplinary proceedings - examining magistrate discharging police officer charged with criminal offence - police disciplinary board entitled to conduct hearing on identical evidence

R (Redgrave) v Commissioner of Police of the Metropolis: CA (Lords Justice Simon Brown, Mummery and Scott Baker): 22 January 2003

At a committal hearing, the examining magistrate discharged the claimant, a police officer, under section 6 of the Magistrates' Courts Act 1980, on the ground that there was insufficient evidence of the offence alleged.

A police disciplinary board decided to conduct a hearing into the offence on the basis of identical evidence.

The claimant sought judicial review of the board's decision on the ground that it did not contravene the double jeopardy rule.

Mr Justice Moses [2002] EWHC 1074 (Admin) dismissed the claim.

The claimant appealed.

John Hardy and Clair Dobbin (instructed by Russell Jones & Walker) for the claimant; Simon Freeland QC and Jason Beer (instructed by Metropolitan Police Solicitor) for the commissioner; Robert Jay QC (instructed by Treasury Solicitor) for the Attorney-General.

Held, dismissing the appeal, that the role of examining justices under section 6 of the 1980 Act was to determine whether there was sufficient evidence to warrant a jury trial; that if there were not, the defendant would be discharged but not acquitted, and the double jeopardy rule had no application; and that, accordingly, there was no bar to the bringing of disciplinary proceedings against the claimant.

(WLR)

REVENUE

Corporation tax - compensation for advance corporation tax paid in contravention of European law - double taxation relief receipts not to be deducted in computing compensation

Pirelli Cable Holding NV and others v Inland Revenue Comrs: ChD (Mr Justice Park): 22 January 2003

The taxpayers, members of a group of companies, were resident in the UK.

Between 1995 and 1999 they paid dividends to subsidiary companies resident in Italy and the Netherlands from which advance corporation tax (ACT) was deducted under section 14 of the Income and Corporation Taxes Act 1980.

Consequent on the decision of the European Court of Justice in Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C-397/98 And C-410/98) [2001] Ch 620 and article 52 (now article 43) of the EC Treaty it became clear that the ACT payments were contrary to European law and the taxpayers were entitled to claim compensation in the UK courts.

An issue arose whether sums received by the subsidiaries under double taxation agreements fell to be deducted in computing the compensation.

The taxpayers, as claimants in a test case under a group litigation order, sought compensation to be paid in full.

Graham Aaronson QC, David Cavender and Paul Farmer (instructed by Landwell (Solicitors) Ltd) for the taxpayers; Ian Glick QC and Zoe O'Sullivan (instructed by Solicitor of Inland Revenue) for the Crown.

Held, that the subsidiaries' double taxation relief receipts were not to be regarded as counterveiling advantages to be set against the disadvantages to the taxpayers of having to pay ACT where they would not have done so if European law had been complied with; and that, accordingly, those receipts were not to be deducted from the compensation.