Law reports

CONTRACT

Illegality - defendant adducing evidence of unpleaded illegality - judge not entitled to dismiss claim on grounds of illegality of his own motion or without investigating all circumstances

Pickering and another v Deacon: CA (Lords Justice Potter and Dyson and Mr Justice Wilson): 27 March 2003

The claimants obtained from their local authority a disabled facilities grant to build an extension to their house, based on an estimate produced by the defendant.

After the defendant had carried out the extension work and been paid, the claimants brought an action against the defendant seeking damages for breach of contract in carrying out defective work.

The defendant contested the claim but pleaded no defence of illegality.

In a witness statement adduced before, and evidence given at, the trial the defendant alleged that the contract sued upon was illegal since he had inflated the costs in the estimate on the request of the first claimant in order to get 1,000, which he had already paid to the defendant, paid out of the grant.

The judge suggested that if the contract were illegal the court would not enforce it.

The judge rejected the claimants' application to allow a material witness to give evidence to rebut the allegation of illegality and dismissed the claim on grounds of illegality, holding that the defendant's witness statement had given adequate notice that the defendant intended to raise the issue of illegality.

The claimants appealed.

Ian Pennock (instructed by Stachiw & Bashir, Bradford) for the claimants; David Rose (instructed by Bassra Solicitors, Bradford) for the defendant.

Held, allowing the appeal, that, although in ordinary cases where a party would not suffer serious prejudice the court might act upon evidence of unpleaded facts which themselves showed an illegal object, it was contrary to the concept of English jurisprudence for the court either to take a point on illegality of its own motion or to act on such evidence unless it were satisfied that the whole of the relevant circumstances were before it.

CRIMINAL

Belonging or professing to belong to proscribed organisations - defence for defendant to establish no part taken in activities of organisation at any time while it was proscribed - legal burden imposed on defendant not incompatible with convention rights

Attorney-General's Reference under section 36 of the Criminal Justice Act 1972 (No 4 of 2002): CA (Lord Justice Latham, Mr Justice Hunt and Mr Justice Hedley): 21 March 2003

The defendant was tried on counts of being a member, and professing to be a member, of a proscribed organisation contrary to section 11(1) of the Terrorism Act 2000.

He sought to rely on the defence provided by section 11(2) of the Act, that it was a defence for a person charged with such offences to prove that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and that he had not taken part in the activities of the organisation at any time while it was proscribed.

The judge ruled, in accordance with the prosecution's concession that the defence imposed a merely evidential burden on the defendant, that there was no case to answer since the prosecution could not prove to the required standard that the defendant had taken part in the activities of the proscribed organisation since proscription.

The Attorney-General referred to the court, under section 36 of the 1972 Act, the questions: what were the ingredients of an offence contrary to section 11(1) of the 2000 Act?; and did the defence contained in section 11(2) of the 2000 Act impose a legal, rather than an evidential, burden of proof on an accused?; and if so, was such a legal burden compatible with the European Convention on Human Rights, and in particular with article 6(2) and article 10?

David Perry and Melanie Cumberland (instructed by the Crown Prosecution Service, Ludgate Hill) for the Attorney-General; Tim Owen QC and Anne Richardson (instructed by Michael Purdon, Newcastle) for the acquitted defendant.

Held, in a reserved judgment, that in Sheldrake v DPP [2003] EWHC Admin 273, QB; The Times, 25 February 2003 and R v Lambert [2002] 2 AC 545, the question whether the relevant provisions made an inroad on, or derogated from, article 6(2), was approached on the basis that the gravamen of the relevant offence should be identified to determine whether the provision providing a defence infringed the presumption of innocence; that in those cases the defence identifying the gravamen of the offence was available to every person charged with the offence and could properly be taken into account in determining what the true nature of the prohibited activity was intended to be, but in the instant case different considerations arose since section 11(1) itself defined the offence, even when read with section 11(2), and the latter expressed a specific exception applicable to a limited class of defendants, which did not affect, or infect, the criminal offence; that section 11(2) did not infringe article 6(2), and even if it did, any infringement would be justified and proportionate; that there was also no infringement of article 10, although in other circumstances a similar statutory provision might involve a disproportionate infringement of that article; that accordingly, the two questions were to be answered by holding that the ingredients of the offence contrary to section 11(1) of the 2000 Act were fully set out within that section, and that the defence in section 11(2) imposed a legal burden on an accused which was not incompatible with either article 6(2) or, subject to the caveat above, article 10.

(WLR)

IMMIGRATION

Asylum claim - secretary of state refusing support because not satisfied claim made as soon as reasonably practicable on arrival - decision-making process unfair

R (Q) v Secretary of State for the Home Department and five other claims [2003] EWCA Civ 364: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Clarke and Sedley): 18 March 2003

The claimants applied for asylum, allegedly shortly after their arrival in the UK but not immediately upon their arrival.

Each claimant was interviewed by an administrative officer of the immigration department and executive officers decided that the claimants had not made their claims as soon as reasonably practicable after their arrival in the UK, with the consequence that they were denied state support under section 55(1) of the Nationality, Immigration and Asylum Act 2002.

Mr Justice Collins [2003] EWHC 195 (Admin) granted the claimants judicial review of the refusal to provide support, holding, among other things, that the decision-making process was unfair.

The secretary of state appealed.

Lord Goldsmith QC, Attorney-General, David Pannick QC, Clive Lewis and Samantha Broadfoot (instructed by the Treasury Solicitor) for the secretary of state; Nicholas Blake QC and Simon Cox (instructed by Ben Hoare Bell, Sunderland and the Refugee Legal Centre); Nicholas Blake QC and Stephen Knafler (instructed by Clore & Co) and Nicholas Blake QC and Ben Hawkin (instructed by Asghar & Co, Slough) for the claimants; Rabinder Singh QC and Raza Husain (instructed by Shami Chakrabarti) for Liberty and the Joint Council for the Welfare of Immigrants, intervening.

Held, dismissing the appeals, that the burden was on an applicant for asylum to satisfy the secretary of state that he had claimed asylum as soon as reasonably practicable after his arrival; that the test of reasonable practicability was whether, on the premise that the purpose of coming to the UK was to claim asylum and having regard both to the practical opportunity for claiming asylum and to the asylum seeker's personal circumstances (which included the effect of anything that he might have been told by his facilitator), the asylum seeker could reasonably have been expected to claim asylum earlier; that the regime imposed on asylum seekers who were denied support under section 55(1) constituted 'treatment' within the meaning of article 3 of the European Convention on Human Rights, but ill-treatment engaging article 3 would have to be of a degree of severity such as that described in Pretty v UK (2002) 35 EHRR 1; that, accordingly, an applicant had to meet a high threshold to satisfy the secretary of state that he was entitled to support under section 55(5) to avoid a breach of his convention rights; that the decision-making process was not fair because, among other things, caseworkers were not properly directed as to the relevant test with regard either to 'reasonably practicable' or article 3, the secretary of state did not have regard to the claimants' states of mind on arrival and the claimants were not given the opportunity of rebutting suggestions of incredibility; but that, provided those defects were remedied, the absence of a right of appeal was not incompatible with the requirements of article 6 of the convention since judicial review would provide a sufficient right of appeal.

LAWYERS

Solicitors' negligence - not necessary for advice to be in writing

Harwood and another v Taylor Vinters (a firm): ChD (Judge Seymour QC sitting as a High Court judge): 18 March 2003

The claimants had entered into an agreement with the vendors of a property in which the business of a nursing home was carried on.

The agreement provided for the eventual acquisition by the claimants of the freehold to the property and the goodwill in the nursing home by hire purchase, for a total of 1.25 million, to be paid by monthly instalments of between 5,000 and 15,000.

Subsequently, the arrangements under the agreement broke down and the claimants instructed the defendant solicitors' firm to advise and act for them in connection with the ensuing litigation.

An order was made for the agreement to be rescinded and possession of the property to be delivered up to the original vendors who were ordered to pay a sum representing the market value of the property less any outstanding amount.

The claimants claimed from the defendant firm their losses suffered in consequence of the dissolution of the agreement, contending that the firm had been negligent, in particular, by giving certain advice orally when it should, as a matter of law, have been in writing.

David Berry, (solicitor-advocate, of Berry & Walton Solicitors LLP, Kings Lynn) for the claimants; Thomas Dumont (instructed by Browne Jacobson, Nottingham) for the defendant firm.

Held, that a solicitor was not, as a matter of law, required to give advice in writing rather than orally; that, however, there were many circumstances in which it was desirable and convenient for advice to be in writing in order to give the client an opportunity to reflect upon it, and it was good practice for a solicitor to make a full attendance note of any attendance upon his client; that there were some advantages in communicating advice verbally since it provided an opportunity for discussion and ready clarification of any element or reasoning which the client did not immediately understand; that the only solid rule was that a solicitor should have given whatever advice a reasonably competent solicitor would in the particular circumstances of the case, and give it clearly and so that the client appeared to understand it; and that in the instant case, merely one of the various negligence claims was proved, resulting in an award of nominal damages in the sum of 2 to the claimants.

PRACTICE

Mode of trial - claimant having sustained injuries during arrest bringing action for false imprisonment and malicious prosecution - jury trial not appropriate

Phillips v Commissioner of Police of the Metropolis [2003] EWCA Civ 382: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justice Rix and Scott Baker): 20 March 2003

The claimant was arrested after being overpowered by police while armed with a knife and acting in a disturbed and aggressive manner.

During the fracas he received injuries for which he was treated in hospital.

He was charged with affray and remanded in custody.

At his first trial the jury were unable to agree.

Following a retrial he was acquitted.

He brought an action for false imprisonment and malicious prosecution.

His application for a trial by judge and jury under section 69 of the Supreme Court Act 1981 was refused.

He appealed.

David Pittaway QC and Julian Waters (instructed by Harris da Silva) for the claimant; Simon Freeland QC and Nadeem Ahmad (instructed by Director of Legal Services, Metropolitan Police) for the commissioner.

Held, dismissing the appeal, that when considering whether a civil claim for, among other things, malicious prosecution or false imprisonment should be tried by judge and jury or exceptionally by judge alone within section 69 of the Supreme Court Act 1981, the court had power under section 69(4) to direct the separate trials of any issue in an appropriate case, although frequently where some issues could not conveniently be tried with a jury the whole case would be more appropriately tried by a judge alone; that the criteria for determining the mode of trial were whether there would be a prolonged examination of documents, if so whether that examination could be conveniently made with a jury and if not whether the court should nevertheless exercise its discretion to order trial with a jury; and that, applying those criteria, jury trial was not appropriate.

PROFESSIONS

Disciplinary proceedings - application by doctor to restore name to register - application to be heard and determined before consideration given to suspending right to make further applications

Raji v General Medical Council [2003] UKPC 24: PC (Lord Steyn, Lord Rodger of Earlsferry and Sir Andrew Leggatt): 19 March 2003

A doctor, whose name had been erased from the register on grounds of serious professional misconduct, made a second application to the professional conduct committee of the General Medical Council to have his name restored to the register under section 41(1) of the Medical Act 1983.

At the hearing he was told to present his case both for restoration of his name to the register and as to why an order should not be made under section 41(6) suspending his right to make further applications for restoration.

The committee then gave its decision on both issues together.

He appealed on the ground that the procedure was unfair.

Nicholas Baldock (instructed by Lloyd & Associates) for the doctor; Jane Collier (instructed by Field Fisher Waterhouse) for the council.

Held, allowing the appeal, that the procedure adopted by the committee under section 41(6) could not be compared with a court determining liability and quantum separately in a civil case, since in such a case there was no risk of unfairness because the issues were entirely distinct, whereas the issues on restoration and suspension under section 41 would often overlap; that it was fair that the doctor should know the decision on restoration and the reasons for it so that he could advance his arguments more effectively against suspension of the right to reapply; and that separate hearings would also reduce the risk of conflating the two inquiries and thus promote better decision making.