LEGAL UPDATE
LAW REPORTS
ARBITRATION
Arbitrator conducting rent review - procedural unfairness - entitled to rely on own professional and personal knowledgeCheckpoint Ltd v Strathclyde Pension Fund: CA (Lords Justice Ward, Mummery and Jonathan Parker): 6 February 2003
Failing to agree rent payable under a rent review clause, the landlord and tenant of warehouse/office premises in Bracknell appointed an arbitrator, an experienced professional surveyor who worked locally, to determine the amount.
After visiting the premises and having considered the parties' written submissions, in 2001 the arbitrator rejected the tenant's case for a market rent of 273,000 per annum and upheld in full the landlord's claim for 440,000 per annum, being double the 1995 level.
The tenant appealed, claiming that the arbitrator had wrongly used inquisitorial powers in allowing his personal knowledge to supplement or supplant the evidence and without giving the tenant an opportunity to comment on it.
Guy Fetherstonhaugh (instructed by Macfarlanes) for the tenant; Jonathan Seitler (instructed by Nabarro Nathanson) for the landlord.
Held, dismissing the appeal, that the test to be applied to ascertain whether an arbitrator's use of his personal knowledge amounted to a procedural irregularity was whether the information on which he had relied was of the kind and within the range which one would reasonably expect him to have acquired if, as required by the terms of this lease, he was experienced in the letting and/or valuation of property of a similar nature to the premises in question which was situate in the same region and used for purposes similar to those authorised under the lease; and that, applying that test, the arbitrator had acted fairly, not causing any substantial injustice to the tenant or committing any serious irregularity within the meaning of section 68(2) of the Arbitration Act 1996.
CONFLICT OF LAWS
Lugano Convention - tort - Norwegian bank sued in England for activities of London branch - English court having jurisdiction
Anton Durbeck GmbH v Den Norske Bank ASA: CA (Lord Phillips of Worth Matravers MR, Lords Justice Brooke and Laws):
3 February 2003
A Norwegian bank with a branch in London entered into a loan agreement with the owners of a vessel.
The loan was entered into and administered by the London branch and the agreement was subject to English law.
The mortgage of the vessel securing the loan was governed by Cypriot law.
The owners defaulted and the London branch gave instructions for the arrest of the vessel in Panama.
The cargo owners sued the bank in England in tort for the loss of the cargo which perished as a result.
The bank applied to set aside the claim form, submitting that the English court lacked jurisdiction.
The judge granted the application, holding that although article 5(5) of the Lugano Convention in Schedule 3C to the Civil Jurisdictions and Judgments Act 1982 (as inserted by the Civil Jurisdiction and Judgments Act 1991) permitted the bank to be sued in England 'as regards a dispute arising out of the operations of a branch...in the courts for the place in which the branch...was situated', that jurisdiction was only engaged where the harmful event the subject matter of the dispute occurred within the jurisdiction of the court, which was not the present case.
The cargo owners appealed.
Nigel Meeson QC (instructed by Swinnerton Moore) for the cargo owners; Luke Parsons (instructed by Stephenson Harwood) for the bank.
Held, allowing the appeal, that in tort and contract claims all that was necessary to establish jurisdiction under article 5(5) was such nexus between the operations of the branch and the dispute as rendered it natural to describe the dispute as one that had arisen out of the operations of the branch; that it was unnecessary to establish that the branch's activities had produced the harmful event within the court's jurisdiction; that in a tort claim the question of whether a dispute arose out of the activities of a branch depended on the particular facts of the case; and that giving the words of article 5(5) their natural meaning, the dispute had arisen out of the activities of the London branch.
CONTEMPT OF COURT
Alleged contempt in face of court - High Court judge empowered to order detention of alleged contemnor for no longer than necessary to arrange summary determination - permission not required for appeal against suspended committal order
Wilkinson v S and another: CA (Lord Woolf Lord Chief Justice, Lady Justice Hale and Lord Justice Latham): 4 February 2003
In the course of family proceedings in the High Court on a Thursday, the father caused a serious disturbance, abusing and threatening the mother and her solicitor and attempting to attack them.
The judge committed the father to prison pending summary determination of an alleged contempt in the face of the court.
The father was brought back to court the following Monday.
He admitted the contempt and was sentenced to six months' imprisonment.
The father appealed, arguing, among other things, that his detention between the Thursday and the Monday had been unlawful.
In a separate incident a year later, a judge in the county court imposed a suspended sentenced on the father for contempt of court, following his breach of a non-molestation order made under the Family Law Act 1996.
The father sought permission to appeal.
Clive Sheldon (instructed by the Treasury Solicitor) for the Lord Chancellor.
Hugo Keith (instructed by the Treasury Solicitor) for the Official Solicitor, intervening.
The father in person.
Held, dismissing the appeals, that a High Court judge could order that a person who had allegedly committed a contempt in the face of the court be detained beyond the rising of the court on the day of the alleged contempt, provided that the detention was for no longer than was necessary to make arrangements for a summary trial in which the rights of the alleged contemnor could be properly protected; that, as a matter of good practice, however, if the case could not be heard the next day, the judge should ensure that the alleged contemnor was brought back to court in any event or, if that were not possible, that inquiries were made and the case mentioned in open court, so that the reasons for any further delay were both known and recorded and the question of bail could be considered; that a suspended committal order was a committal order for the purpose of CPR rule 52.3(1)(a) and, therefore, it could be appealed without permission; but that, in the circumstances, both appeals would be dismissed (WLR).
CRIMINAL
Youth court required to commit young defendants to Crown Court for trial if statutory conditions satisfied - claims for judicial review of youth court's decision to commit - High Court to interfere only if satisfied youth court's decision wrong
R (C and another) v Sheffield Youth Court; R (N) v Sheffield Youth Court: QBD (Mr Justice Stanley Burnton): 23 January 2002
In the first case, the youth court committed the two claimants to the Crown Court for trial on charges of robbery.
In the second case, the same court committed the claimant to the Crown Court for trial on a charge of attempted robbery.
The claimants were all either 14 years of age or within a month or so of their fourteenth birthdays at the date of the alleged offences.
The claimants sought judicial review of the youth court's decisions.
Stephen Simblet and Emma Favata (instructed by Howells, Sheffield) for the claimants; Stephen John (instructed by the Director of Public Prosecutions) for the Director of Public Prosecutions as an interested party.
The youth court did not appear and was not represented.
Held, granting judicial review in the first case but dismissing the claim in the second, that section 24(1) of the Magistrates' Court Act 1980, as amended by section 165(1) of the Powers of Criminal Courts (Sentencing) Act 2000, unambiguously required the youth court to commit to the Crown Court if the conditions for the exercise of the power were satisfied; and that, since Parliament had clearly given the original decision to the youth court in terms which admitted some latitude, the test to be applied on a claim for judicial review was one appropriate to a review court rather than one making the original decision, and so the High Court should grant judicial review only if satisfied that the decision of the youth court was wrong.
Fitness to plead - defendant found unfit and to have done acts charged - not 'charged with a criminal offence' so no breach of convention rights
R v H: HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Walker of Gestingthorpe):
30 January 2003
The defendant was charged with two offences of indecent assault and was found by a jury, under section 4 of the Criminal Procedure (Insanity) Act 1964 (as substituted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991), to be unfit to plead.
A second jury found, under section 4A (as substituted), that he had done the acts charged against him as the offences.
The judge ordered his absolute discharge.
He appealed against the second jury's finding, contending that since, being under mental disability, he had been unable to follow the proceedings or give instructions, article 6 of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998, had been infringed.
The Court of Appeal (Criminal Division) (sub nom R v M [2002] 1 WLR 824) dismissed his appeal.
He appealed.
Robert Smith QC and Richard Wright (instructed by Blake Lapthorn for Haddock & Co, Halifax) for the defendant; Paul Worsley QC, David Perry and Jonathan Laidlaw (instructed by Crown Prosecution Service) for the Crown; David Perry (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department (interested party).
Held, dismissing the appeal, that the procedure under section 4A of the 1964 Act did not involve the determination of a criminal charge and the defendant was not 'charged with a criminal offence' within article 6 of the convention; and that, accordingly, there had been no infringement of article 6 (WLR).
EQUITY AND SUCCESSION
Breach of trust- trustees' delay in paying tax causing trust to incur penalties and interest payments - compensation to be assessed as at date of judgment so trustees entitled to set off deposit interest earned due to late payment of tax liability
Hulbert and others v Avens and another: ChD (Judge Richard Seymour QC sitting as a High Court judge): 30 January 2003
The claimants were the beneficiaries of trusts of money settled on them by their parents and administered by the defendant trustees.
The trust money was used to buy land which was resold at a substantial profit.
In breach of trust, the trustees failed to settle the trust funds' liabilities for capital gains tax timeously, causing the funds to become liable for penalty charges and interest.
The claimants applied to the court for an account and/or equitable compensation for the losses caused.
The trustees admitted the breaches of trust and paid compensation to the beneficiaries, but set off against their liability for interest and penalties the interest earned while the money which should have been used to meet the trusts' tax liability was on deposit.
The claimants applied to the court contending that the trustees were not entitled to that set off.
Graham Platford (instructed by Kagan Moss & Co, Teddington) for the claimants.
Ben Patten (instructed by Henmans, Oxford) for the defendants.
Held, declaring that the trustees were entitled to credit for the interest earned, that courts of equity did not award damages but, acting in personam, ordered the defaulting trustee to make restitution or pay sufficient compensation to put the beneficiaries back to where they would have been had the breach not been committed; that whether the money was paid to the trust estate or directly to the beneficiaries the measure of compensation would be the difference between what the beneficiaries would have received but for the breach of trust and what they had in fact received; that, while a trustee who wrongly paid away trust money came under an immediate duty to remedy that breach, quantum was assessed as at the date of judgment, since otherwise the court might find itself awarding compensation for a loss which had never been suffered; and that, while the utilisation of trust funds to meet liabilities to a third party consequent on a breach of trust was itself a breach of trust, that latter breach had no practical consequences because it caused no further loss.
IMMIGRATION
Foreign national with leave to enter UK as student taking part-time employment - study ceasing because of poor attendance but employment continuing - no breach of entry conditions
R (Zhou) v Secretary of State for the Home Department: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Rix and Scott Baker):
31 January 2003
The claimant, a Chinese national, obtained a visa to enter the UK as a student.
During his stay he took part-time employment at a supermarket, which a student was authorised to do by chapter 4 of annex A to the Immigration Directorates' Instructions.
Shortly afterwards he left the college, which informed him of his poor attendance and unsatisfactory progress and required his return to China.
He was arrested by the Immigration Service and detained pending his administrative removal under section 10 of the Immigration and Asylum Act 1999 for failure to observe a condition of leave to enter or remain, on the basis that his poor attendance at college, contrary to paragraph 57(ii)(b) of the Statement of Changes in Immigration Rules (1994) (HC 395), deprived him of his status as a student and, consequently, he was not entitled to work without express permission.
His application for judicial review of the secretary of state's decisions was refused.
He appealed.
Robert Jay QC and Shahram Taghavi (instructed by David Tang & Co) for the claimant; Philip Coppel (instructed by the Treasury Solicitor) for the secretary of state.
Held, allowing the appeal and quashing the decision to remove him, that for the purposes of the Immigration Rules (HC 395), a student was a person who had been given leave to enter the country as a student; that that status was not dependent on a satisfactory course attendance record; and that, accordingly, the claimant remained a student for the purposes of HC 395, was entitled by chapter 4 to take part-time employment without specific authorisation and, therefore, was not in breach of his entry conditions.
Children applying for visas to join parents in UK - entry clearance officer concluding children at risk of serious harm from father - entitled to refuse visas on ground that parents not providing 'adequate accommodation'
M and another (Children) v Secretary of State for the Home Department: CA (Sir Andrew Morritt Vice-Chancellor, Lady Justice Hale and Lord Justice Dyson): 4 February 2003
An entry clearance officer, who was concerned that two siblings would be at risk of serious harm from their father, refused to grant them entry clearance visas to join their parents, who were resident in the UK.
The sole ground for her decision was that the children would not be 'adequately accommodated' by their parents within the meaning of rule 297 (iv) of the Statement of Changes in Immigration Rules (1994)(HC 395).
An adjudicator and the Immigration Appeal Tribunal upheld her decision.
The children appealed pursuant to permission granted by the tribunal, on the point of law whether 'adequate accommodation' included non-material concerns.
Donald Gordon (instructed by Sharma & Co) for the children.
Jenni Richards (instructed by the Treasury Solicitor) for the Secretary of State.
Held, dismissing the appeal, that the words 'adequate accommodation' in rule 297 (iv) should be interpreted purposively so as to achieve its objective to promote family life; that without clear words the court would not impute to Parliament an intention to authorise or require the grant to children of indefinite leave to enter the UK if they were likely to be subjected to serious abuse from their parents, even if the parents were able to provide them with excellent physical accommodation; that the factors relevant to the adequacy of the accommodation by the parent were not limited to its physical features but included wider considerations such as whether the parent posed a risk to the child; and that the entry clearance officer had been justified in refusing to grant leave to enter on the ground that the children would not be 'adequately accommodated' by their parents.
PRACTICE
Jurisdiction - contract giving Polish courts non-exclusive jurisdiction over disputes - Lugano Convention not conferring exclusive jurisdiction on Polish courts
Insured Financial Structures Ltd v Elektrocieplownia Tychy SA: CA (Lord Woolf Lord Chief Justice, Lady Justice Hale and Lord Justice Latham): 28 January 2003
The claimant, a company registered in England and Wales, brought a claim against the defendant, a Polish company, for breach of contract.
Under the contract the parties had agreed that the courts of Poland were to have 'non-exclusive' jurisdiction over any disputes and that English law would govern the agreement.
The defendant sought a declaration that the claimant could only bring its claim in Poland because of article 17(1) of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as scheduled to the Civil Jurisdiction and Judgments Act 1982, which provided that if the parties had agreed that the courts of a contracting state were to have jurisdiction to settle any disputes, those courts should have exclusive jurisdiction.
The judge, following Kurz v Stella Musical Veranstaltungs GmbH [1992] Ch 196, held that there was jurisdiction to hear the claim in England.
The defendant appealed.
Guy Philipps QC (instructed by Nicholson Graham & Jones) for the defendant; John Higham QC (instructed by Stephenson Harwood) for the claimant.
Held, dismissing the appeal, that article17(1) had to be given effect in a manner which took into account the intentions of the parties; that, construing the agreement against the provisions of the convention, the parties had clearly intended that Poland was to have jurisdiction to resolve disputes but that that jurisdiction was not to be exclusive; that, therefore, the agreement conferred jurisdiction on a number of contracting states, with the identity of those contracting states, apart from Poland, being provided by the convention itself; and that, accordingly, the effect of the express reference to Poland in the agreement was that Poland had jurisdiction even if it would not otherwise have had jurisdiction under the convention (WLR).
Action for declaration and inquiry as to damages - part 24 application for summary judgment on declaration - part 36 offer not to be divulged to judge on part 24 application
Sony Music Entertainment (UK) Ltd and others v Easyinternetcafe Ltd: ChD (Mr Justice Peter Smith): 28 January 2003
The claimants brought an action for a declaration that the defendant had infringed the claimants' copyright and an inquiry as to damages and/or an account of profits.
The claimants applied under part 24 of the Civil Procedure Rules 1998 for summary judgment on the declaration.
The defendant resisted the application on the basis, among other things, that it was not an appropriate case for a split trial between liability and quantum and that the fact that it had made a part 36 offer to settle reinforced that case.
Richard Spearman QC and Pushpinder Saini (instructed by Wiggin & Co) for the claimants; Richard Arnold QC (instructed by Denton Wilde Sapte) for the defendant.
Held, granting the application, that on the hearing of a part 24 application a judge should not be told of the existence of part 36 offers; that, although the principle in CPR rule 36.19(2) that such offers should not be communi-cated to the trial judge until all questions of liability and quantum had been decided had been disapplied in interlocutory applications, a part 24 application was not an interlocutory application for those purposes because the court was in effect dealing with the trial; and that, on the facts, the defendant had failed to show any other good reason why summary judgment on the declaration should not be granted.
Seizure of dutiable goods and motor car - condemnation proceedings - owners of goods not entitled to public funding of legal costs - proceedings civil not criminal
R (Mudie and another) v Dover Magistrates' Court and another: CA (Lord Phillips of Worth Matravers MR, Lords Justice Brooke and Laws):
4 February 2003
In March 2001 the claimants were returning to England from France in their motor car when they were stopped by customs officers.
The officers seized tobacco and alcohol on which the claimants had not paid duty and the motor car in which the claimants were travelling.
The claimants disputed that the goods were liable to seizure and the Customs and Excise Commissioners issued proceedings in the magistrates' court under paragraph 6 of Schedule 3 to the Customs and Excise Management Act 1979 for the condemnation of the seized items on the ground that the goods were being held not for the claimants' own use but for a commercial purpose.
The magistrates refused the claimants' application for a representation order under section 12(2) of the Access to Justice Act 1999 for the public funding of their legal costs in the proceedings, holding that the proceedings were civil and not criminal proceedings.
A judge of the Administrative Court [2002] EWHC 749 (Admin) refused the claimants' application for permission to claim judicial review of the magistrates' decision.
The claimants appealed.
Mathew Sherratt (instructed by Bates Wells & Braithwaite, Sudbury) for the claimants; David Barnard and Andrew Bird (instructed by the Solicitor, Customs and Excise) for the commissioners.
Held, dismissing the appeal, that condemnation proceedings under paragraph 6 of schedule 3 to the Customs and Excise Management Act 1979 were civil rather than criminal proceedings; and that the magistrates had therefore properly refused the claimants' application for a representation order.
SHIPPING
Bills of lading - carrier parting with cargo without presentation of bills - cargo-owners entitled to claim in bailment despite transfer of contractual rights to third party
East West Corpn v Dampskibsselskabet AF, 1912, Aktieselskab and another; Utaniko Ltd v P & O Nedlloyd BV:
CA (Lords Justice Brooke, Laws and Mance): 12 February 2003
The claimants' goods were shipped under bills of lading on the defendants' vessels.
The bills were endorsed to and held by banks.
The defendants delivered the goods to a third party who had no right to them and without presentation of the bills.
The banks re-delivered the bills to the claimants but failed to endorse them to the claimants.
The claimants claimed for loss of the goods.
The judge held that the claimants had transferred their rights of suit to the banks under section 5(2) of the Carriage of Goods by Sea Act 1992 but had acquired no rights of suit through re-delivery of the bills because they were not endorsed to them; that in transferring the bills to the banks the claimants had parted with any immediate right to possession of the goods and thereafter had no rights in bailment as against the defendants; but that, as owners of the goods, they were entitled to claim for the permanent deprivation of their proprietary interest in the goods.
The defendants appealed.
Nicholas Hamblen QC and Michael Davey (instructed by Hardwick Stallards and Hill Taylor Dickinson) for the defendants; Stephen Males QC and Richard Waller (instructed by Clyde & Co) for the claimants.
Held, dismissing the appeals, that the claimants had bailed the goods to the defendants on the terms of the bill of lading, and although their contractual rights of suit had been statutorily transferred to the banks, their rights as bailors continued as against the defendants on the same terms and they retained a sufficient immediate right to possession to enable them to pursue claims in bailment; that, alternatively, the claimants could claim for any loss of or damage to their reversionary interest, and any such claim would constitute a claim in or be determined by the same principles as governed claims in bailment; that the defendants were in breach of their duty in bailment, or on a basis analogous to bailment, in failing to deliver up the goods to the person entitled to them against presentation of the bill of lading; and that their breach was causative of the claimants' loss.
TORT
Vicarious liability - chief constable's liability for torts of police constable - police officer acting in purported performance of function as police officer
Weir v Chief Constable of Merseyside Police: CA
(Lords Justice Tuckey and Latham and Sir Denis Henry):
29 January 2002
A police officer identified himself as such although off duty, assaulted the claimant, forcibly removed him from a building and locked him in a police van.
The claimant brought proceedings against the chief constable
under section 88 of the Police
Act 1996.
At the determination as a preliminary issue of whether the chief constable was vicariously liable for the tortious acts of the police constable, the judge found that the constable had assaulted the claimant, manhandled him out of the building and forcibly detained him in the police van but concluded that he was not acting in purported performance of his duty and, therefore, the claimant could not recover damages from the chief constable.
The claimant appealed.
John Gruffydd (instructed by
E Rex Makin & Co, Liverpool) for the claimant; William Waldron (instructed by Weightman Vizards, Liverpool) for the chief constable.
Held, allowing the appeal and giving judgment for the claimant on the preliminary issue, that to establish liability the claimant had to show that the alleged tort was committed at a time when the police officer was apparently acting in his capacity as a constable; that from the moment the constable put the claimant out of the building he was apparently exercising his authority as a constable, having confirmed that he was a police officer and, therefore, the chief constable was vicariously liable for the assault, the injuries caused and for the time the claimant was forcibly confined in the van, and in law no blame attached to the claimant for what happened (WLR).
Negligence - claimant injured in collision with car driven by defendant above speed limit - breach of speed limit capable of constituting evidence of negligence
Geralis v Opuni: CA (Lords Justice Kennedy, Mantell and Mance):
28 January 2003
An eighteen-year old student, riding a moped, came to a road junction where a number of vehicles were waiting at a traffic signal to turn right.
The claimant, having overtaken all the cars in front of him, turned right without noticing that the defendant was driving his car along the main road at about 38 mph in a 30 mph speed limit area.
The defendant, appreciating the presence of the claimant's moped in his lane of traffic, applied his brake promptly but the car skidded, hitting the rear of the moped and injuring the claimant.
The claimant brought an action for negligence.
An expert witness suggested that the accident would have been avoided if the car had not exceeded 30 mph.
The judge held that a breach of a statutory speed limit was not a breach of the duty of care to an individual user of the road in a civil claim and dismissed the action.
The claimant appealed.
Charles Scott (instructed by Redferns, Wembley Park) for the claimant; Marcus Dignum (instructed by Liddell & Co, Gidea Park) for the defendant.
Held, allowing the appeal, that although the Road Traffic Acts did not give civil remedies in litigation between individuals, evidence of a breach of the Road Traffic Acts could be evidence of negligence; that, where the evidence was that the accident would have been avoided if the defendant had not exceeded the speed limit, it was appropriate to find negligence against the defendant who had driven his car in excess of the speed limit; but that the claimant owed a heavy duty to keep a proper look out and had been 80% contributorily negligent.
Proceedings issued against personal representative of deceased's estate where none appointed - action abandoned and second action brought after expiry of primary limitation period against deceased's estate - second action not abuse of process and time limit properly excluded to allow action to proceed
Piggott v Aulton (deceased): CA (Lords Justice Simon Brown and Sedley and Lady Justice Arden): 29 January 2003
The claimant brought a damages claim after a road traffic accident in 1997 against the estate of the driver killed in the accident.
In 2000, she issued proceedings against 'the personal representatives of the estate' although no personal representative had been appointed.
Following legal advice the proceedings were discontinued and new proceedings issued in 2001, after the expiry of the primary limitation period, against the estate.
A consent order was made for a representative underwriter to be appointed to represent the estate and proceedings were then served on the deceased's insurer's solicitors.
The judge refused to set aside service of the new proceedings as an abuse of the process of the court.
The representative of the estate appealed.
Richard Moat (instructed by Weightman Vizards) for the representative; Simon Beard (instructed by DLA) for the claimant.
Held, dismissing the appeal, that an action in damages, brought by issuing proceedings against the personal representatives of the estate of a deceased person where no personal representative had been appointed, was brought against a person without legal personality; and that a second action subsequently issued against a person appointed by the court to represent the estate in the defence of proceedings was not therefore brought against the same defendant as the first action, and the court could exercise its discretion under section 33 of the Limitation Act 1980 to exclude the limitation period so as to allow the action to proceed.
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.uk
WLR means that a report has been submitted for publication in the Weekly Law Reports
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