Law reports

Law reports

CONTEMPT OF COURT

Family county court proceedings - contempt in connection with proceedings but not in face of court or disobedience to order - Queen's Bench Division having exclusive jurisdiction to punish

In re G (A Child) (Contempt: Committal): CA (President Dame Elizabeth Butler-Sloss, Lords Justice Mummery and May): 10 April 2003

The father applied for contact with the child of the marriage, now aged three, and the mother had applied to terminate contact and for prohibited steps and non-molestation orders.

During the proceedings, although no contempt proceedings had been initiated, the judge, of his own motion, found the father, who was unrepresented, to be in contempt of court for placing details of the case on the Web site of the organisation 'Families Need Fathers', including sufficient information to identify volunteers at the contact centre by name and fully to identify the child.

He sentenced the father to 14 days' imprisonment, suspended for six months.

The father appealed.

Peter Horrocks (instructed by Harding Swinburne Jackson & Co, Sunderland) for the father; Anita Thind (instructed by Wilson Browne, Wellingborough) for the mother; Michael Nicholls (instructed by the Official Solicitor) for the Official Solicitor.

Held, allowing the appeal and setting aside the order, that the process leading to the committal order had been seriously flawed and substantially unfair; that, by virtue of the Civil Procedure Rules 1998 (CPR), schedule 1 and the Rules of the Supreme Court, order 52, rule 1(2), contempt of court 'in connection with' proceedings in the county court which was not contempt in the face of the court nor disobedience of an order made by, or an undertaking given to, a county court, was only punishable by an order of committal made in the Queen's Bench Division; so that in any other circumstances, despite the inconsistency in paragraph 1.1 of Practice Direction (Family Proceedings: Committal [2001] 1 WLR 1253, there was no jurisdiction to make a committal order in county court family proceedings.

CRIMINAL

Claimant convicted of murder and sentenced to be detained during Her Majesty's pleasure - secretary of state introducing policy to provide for tariffs to be set by trial judges in open court - policy unlawful in that secretary of state not prepared to keep open possibility of further review of minimum term for those sentenced prior to policy taking effect

R (Smith) v Secretary of State for the Home Department: QBD (Lord Justice Kennedy and Mr Justice Mitchell): 3 April 2003

The claimant, with her co-accused, pleaded guilty to murder in 1993.

She was under the age of 18 and sentenced to be detained during Her Majesty's pleasure.

The trial judge recommended a tariff of 16 years in relation to each offender, the Lord Chief Justice recommended 14 years, and the secretary of state set the tariffs at 15 years.

In March 2000, the secretary of state made a statement in the House of Commons that he would bring forward legislation to provide for tariffs to be set by trial judges in open court, as they were already being set for adults subject to discretionary life sentences.

In November 2001, the Lord Chief Justice decided that there was no ground for reducing the claimant's tariff.

The claimant sought judicial review by way of a declaration that the secretary of state's policy was unlawful 'to the extent that it makes no provisions for the further judicial review of an existing HMP detainee's tariff after it has been fixed in accordance with the Lord Chief Justice's recommendation'.

Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Irwin Mitchell, Sheffield) for the claimant; David Pannick QC and Kate Gallafent (instructed by the Treasury Solicitor) for the secretary of state.

Held, granting judicial review, that those sentenced prior to 30 November 2000, from which date section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 provided for judges to set tariffs, enjoyed the right to have the tariff or minimum period reviewed from time to time; that the secretary of state's policy was, therefore, unlawful, but only to the extent that he was not prepared to keep open the possibility of a further review by him of the claimant's minimum term after that term had been fixed in November 2001 in accordance with the recommendation of the Lord Chief Justice as required by section 28(4) of the Crime (Sentences) Act 1997; and that, accordingly, the declaration sought would not be made because of the width of its terms.

(WLR)

Attorney-General seeking leave to refer sentence to Court of Appeal as unduly lenient - Attorney-General not fully aware of facts when exercising discretion to apply for leave to refer - application to amend reference and leave to refer refused

R v Sheppard (Nicola) (Attorney General's Reference No 14 of 2003): CA (Lord Justice Kay, Mr Justice Goldring and Mrs Justice Cox): 9 April 2003

The Attorney-General applied to the Court of Appeal pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer a sentence as unduly lenient, but since it had become clear that the reference was inaccurate he also applied, before making submissions, to amend the reference.

Brendan Kelly (instructed by the Treasury Solicitor) for the Attorney-General; Mark Horton (assigned by the Registrar of Criminal Appeals) for the defendant.

Held, refusing the application, that in introducing the procedure whereby a sentence might be altered, where there had previously been no question of a sentence being increased at the Crown's behest, Parliament had seen fit to introduce a number of necessary safeguards; that one such safeguard was the requirement that the Attorney-General should not only have considered the matter and decided for himself whether the sentence before him was unduly lenient, but also have exercised his discretion whether to seek to refer the matter, Parliament having bestowed upon him a discretion to refer and not a duty; that the granting of leave to refer was not an automatic procedure, and on these facts, where the Attorney-General had not been put fully in the picture when he had exercised his discretion, the safeguard as to exercise of his discretion had not been met; and that, accordingly, the application was so defective that it would not be appropriate to grant leave.

Evidence - cell confession - need for warning to jury to consider risk of improper motive and to exercise caution

Benedetto v The Queen; Labrador v The Queen: PC (Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Lord Hutton and Lord Rodger of Earlsferry): 7 April 2003

The Crown's case against the two defendants for murder depended almost entirely on the evidence of P, a fellow remand prisoner of admitted bad character, who claimed that the defendant L had confessed to him and that statements made by the defendant B also implicated him.

The judge ruled that there was insufficient evidence against B to go before a jury but L was tried and convicted.

The Eastern Caribbean Court of Appeal allowed the Crown's appeal against the ruling that B had no case to answer, and dismissed L's appeal against conviction.

The defendants appealed to the Privy Council.

Edward Fitzgerald QC, Paul Bowen and Hayden St Clair-Douglas (of the British Virgin Islands Bar) (instructed by Simons Muirhead & Burton) for L; John Perry QC (instructed by Myers Fletcher & Gordon) for B; James Dingemans QC, Terrence F Williams, Principal Crown Counsel and David A Abednego, Crown Counsel (both of the British Virgin Islands Bar) (instructed by Charles Russell) for the Crown.

Held, allowing the appeals, that where there were indications that the evidence of a cell confession allegedly made to a fellow prisoner might be tainted by an improper motive, the judge should draw the jury's attention to those indications and their possible significance, and should then advise the jury to be cautious before accepting the prisoner's evidence; that in view of the judge's failure to give adequate directions in relation to P's evidence, L's conviction was unsafe; and that, in view of the unsatisfactory nature of P's evidence, neither defendant should face retrial.

(WLR)

DAMAGES

Future loss of earnings - notional earnings based on claimant's likely career but for accident - conventional method of assessment to be used

Herring v Ministry of Defence: CA (Lords Justice Potter and Tuckey and Mr Justice Wall): 10 April 2003

The claimant sustained serious injuries in a parachute accident as a result of the defendant's negligence, which left him with a long-term disability.

On his claim for damages the judge found that there was a strong likelihood that, but for the accident, the claimant would have had a police career, or that he would likely have been similarly remunerated.

The judge rejected the defendant's submission that he should treat the earnings based on a police career as a claim for the loss of a chance, assessed on the basis of a 75% chance of him pursuing that career, and he calculated the future loss of earnings using the conventional method of applying to the multiplicand of the claimant's notional police salary a multiplier of 15.4 taken from the Ogden Tables, which he reduced to 11.7 for 'uncertainty', a reduction in earnings of 25%.

The claimant appealed against so large a reduction.

Theodore Huckle (instructed by Hugh James, Cardiff) for the claimant; Paul Kilcoyne (instructed by the Treasury Solicitor) for the defendant.

Held, allowing the appeal, that the method of assessing the loss of a chance of a particular career by reference to a percentage risk that the chance would not occur was only appropriate where the chance was one of significantly higher earnings than those which it was otherwise reasonable to take as the baseline for calculation; that in a case such as the present, where a particular career was advanced as typical of, rather than an improvement on, the level of earnings which a claimant might reasonably achieve, it was appropriate to adopt the conventional approach to the calculation of earnings loss; and that, although the judge had used the correct method of assessment, in the circumstances the multiplier should have been 14, not 11.7.

INSOLVENCY

Association incorporated by Royal Charter not registered under Companies Acts but having status of legal person - court having jurisdiction to make administration order - creditors' meeting competent body to approve company voluntary arrangement

In re The Salvage Association: ChD (Mr Justice Blackburne): 9 May 2003

The petitioner, an association of members incorporated by Royal Charter, petitioned for an administration order under part II of the Insolvency Act 1986, with a view to the approval of a voluntary arrangement with its creditors under part I of the Act.

The association, although having the status of a body corporate and legal person, had not been registered as a 'company' under the Companies Acts and the question arose as to whether the relevant provisions of the 1986 Act extended to such an association.

With effect from May 2002, words were inserted in section 1(4) of the 1986 Act (in relation to company voluntary arrangements) and section 8(7) (relating to administration orders) which extended the meaning of a 'company' to include, by virtue of article 3 of Council Regulation (EC) 1346/2000, 'a legal person'.

Article 3 of regulation 1346/2000 provided that the courts of the member state within which the centre of the debtor's main interests was situated had jurisdiction to 'open insolvency proceedings', which included administration and voluntary arrangements.

Article 2(d) defined 'court' as 'any competent body of a member state empowered to open insolvency proceedings'.

Gabriel Moss QC (instructed by Lawrence Graham) for the petitioner.

Held, that, on a true construction, sections 1(4) and 8(7) of the 1986 Act, together with regulation 1346/2000 allocated jurisdiction, in relation to various types of insolvency proceedings, to the UK, regardless of the place of incorporation, provided the main interests of the company were within the UK; that, since the association was a 'company' within the extended meaning given in article 3 of the regulation which had the centre of its main interests in the UK, it could therefore be the subject of an administration order under part II of the Act and enter into a company voluntary arrangement with its creditors under part I of the Act; and that, applying a broad interpretation of the definition of 'court' given in article 2(d) of the regulation, a creditors' winding up constituted a 'competent body' empowered to open the insolvency proceedings.

JUDGE

Circuit judge authorised to sit in Technology and Construction Court sitting in Queen's Bench Division - judge and parties wrongly believing him to be authorised to do so - judge's decision valid as decision of de facto judge

Coppard v Customs and Excise Comrs: CA (Lords Justice Thorpe, Sedley and Mance): 9 April 2003

A circuit judge who had been authorised to sit in the Technology and Construction Court, a specialist list of the High Court, sat in the Queen's Bench Division of the High Court on the claimant's claim for damages for breach of contract against the Customs and Excise Commissioners in the mistaken belief, shared by all parties involved, that he was authorised to sit as a judge of the Queen's Bench Division.

He awarded the claimant nominal damages only.

The claimant appealed on the ground that the judge had not had authority to hear the case.

Duncan Macpherson (instructed by Johnson Sillett Bloom) for the claimant; Michael Patchett-Joyce (instructed by the Solicitor, Customs and Excise) for the commissioners; Philip Sales (instructed by the Treasury Solicitor) for the Lord Chancellor.

Held, dismissing the appeal, that the doctrine that acts of a de facto judge were valid in law did not validate the acts, nor therefore ratify the authority, of a person who, though believed by the world to be a judge of the court in which he sat, knew that he was not; that a person who knew he lacked authority included a person who had shut his eyes to that fact when it was obvious, but not a person who had simply neglected to find it out; that the judge had neither known nor ought to have known that he was not authorised to sit as a judge of the High Court; that the doctrine operated to validate the judge's office and not merely acts done under colour of it, and so such a judge was 'a tribunal established by law' within the meaning of article 6 of the European Convention on Human Rights; and that, accordingly, the judge had had jurisdiction to hear the case.

LANDLORD AND TENANT

Option to determine lease - construction based on words actually used and words not to be imported to give effect to extrinsic evidence of intention - claim for rectification not to be resolved on summary application

JIS (1974) Ltd v MCP Investment Nominees I Ltd and another: CA (Lords Justice Kennedy, Buxton and Carnwath): 9 April 2003

The landlord of a substantial office building, which included shop units in the ground floor, granted a lease of the whole building to the tenant, who on the same day granted an underlease of the units to the landlord.

The lease granted an option to the tenant to surrender 'the demised premises' and 'yield the same' to the landlord after 15 years.

When the tenant served a notice to exercise the option, the landlord asserted that the surrender of the premises should include the units.

The tenants claimed a declaration that the surrender did not include the units which had been underleased to the landlord, upon which the tenant had no control, and that for the purpose of an effective surrender the parties had not intended to include the units in the surrender; and rectification to exclude the units, on the basis that the clause had been drafted by mutual mistake.

The judge held that the units were included in the surrender clause as drafted but ordered that the claim for rectification be tried.

The tenant and the landlord appealed.

Jonathan Brock QC and Catherine Taskis (instructed by Clyde & Co) for the tenant; Kim Lewison QC (instructed by Herbert Smith) for the landlord.

Held, dismissing the appeals, that for the purpose of construing the clause the intention of parties should be discovered from the words expressly used in the lease; that, so construed, it was impossible to exclude the units from the phrase 'the demised premises'; that although, in an appropriate case, for the purpose of construction the court could provide words to make grammatical sense of a clause, the court would not imply terms or import words in order to change the meaning; but that a claim for rectification should be decided at a proper trial and not in a summary application.

Registered social landlord taking over existing possession claims on transfer of local authority stock - court required to consider tenant's objections before substituting claimant and dispensing with notice - recommended procedure to save time and costs

Knowsley Housing Trust v Revell; Helena Housing Ltd v Curtis: (Lords Justice Peter Gibson, Waller and Jonathan Parker): 9 April 2003

Two local authorities began possession proceedings against their secure tenants.

Each transferred its stock to registered social landlords which intended to continue the proceedings against the tenants whose tenancies now came under the assured tenancy regime.

The landlord was required to serve notice under section 8 of the Housing Act 1988, but the court could dispense with notice if just and equitable.

The judge decided that substitution and dispensation was permitted where the landlord relied on the same breach in the same tenancy under the same terms and was claiming no mandatory relief, and that if those conditions were met it was always appropriate to make the order without having to look at the tenant's objections at that stage.

The defendants appealed.

Jan Luba QC and Martin Littler (instructed by Stephensons, St Helens) for the tenants; Ashley Underwood QC and Michael Singleton (instructed by Anthony Collins Solicitors, Birmingham; Howarth Goodman, Manchester) for both landlords.

Held, allowing the appeal, that, where a local authority had commenced proceedings for possession of properties and then title of those properties had transferred from the authority to a registered social landlord, thereby converting secure tenancies into assured tenancies under the 1988 Act, and the new landlord wished to continue the possession proceedings, the court ordinarily would have no jurisdiction to try the claim of the landlord as substituted claimant unless it had served a notice under section 8 and complied with the time limits therein; that the court's power to dispense with notice under section 8(1)(b) would usually be exercised if the landlord relied on the same breach in the same tenancy under the same terms and was claiming no mandatory relief; but that it was not legitimate for the court so to order without some consideration of any objection to that course taken by the tenant by reference to the facts of his case, simply on the basis that the tenant could take any points later at the possession hearing itself; and that the court would suggest a procedure to be adopted in future cases by the parties to save time and costs.

PRACTICE

Defendant seeking to set aside default judgment - required to show realistic prospect of successfully defending claim with case better than merely arguable - test similar to that for claimant seeking summary judgment

ED&F Man Liquid Products Ltd v Patel and another: CA (Lords Justice Peter Gibson and Potter): 4 April 2003

The claimant obtained judgment against both defendants in default of acknowledgement of service.

Both defendants applied to set the judgments aside.

The judge rejected the first defendant's application but granted the second defendant's application.

The first defendant appealed.

Robert Thomas (instructed by Clyde & Co) for the first defendant; Simon Bryan (instructed by Mills & Co) for the claimant.

Held, dismissing the appeal, that it was clear that the draftsman had adopted the phrase 'real prospect of successfully defending the claim' for the purposes of both CPR rule 13.3(1)(a) and rule 24.2(a)(ii) and, subject to the question of burden of proof, might be taken to have contemplated a similar test under each rule; that there had to be a realistic, as opposed to a fanciful, prospect of success, the defence had to carry some degree of conviction and the case had to be better than merely arguable; that under both rules, where there were significant differences between the parties over factual issues, the court was not in a position to conduct a mini-trial, although the court did not have to accept without analysis everything said by a party in statements before the court; and that, on careful examination of the position, the judge had not been subject to any significant error or misunderstanding concerning the matters raised.

REVENUE

Income tax - PAYE - coding to be amended to include provisional underwriting losses before closure of syndicates' accounts

Blackburn (Inspector of Taxes) v Keeling: ChD (Mr Justice Peter Smith): 9 April 2003

The taxpayer was a 'name' in various Lloyd's syndicates.

Syndicates did not close their accounts at the end of an underwriting year but kept them open for a further two years.

The taxpayer had agreed projected underwriting losses of 425,390 which were expected to arise in the year of assessment 2003/04.

General commissioners in August 2002, allowing an appeal by the taxpayer, determined that his PAYE coding be amended forthwith to reflect the loss.

The Inland Revenue appealed, contending that the losses were to be treated as those of the year of assessment 2003/04.

David Ewart (instructed by the Solicitor, Inland Revenue) for the Crown; Giles Goodfellow (instructed by Gregory Rowcliffe Milners) for the taxpayer.

Held, dismissing the appeal, that the dispute turned on a cash flow exercise concerning the year when loss relief under section 380 of the Income and Corporation Taxes Act 1988 could be claimed; that the Income Tax (Employment) Regulations 1993 provided for the PAYE system to be a provisional assessment procedure, regulation 7(f) entitling the inspector to take account of all matters and arrive at the fairest, most realistic code and likely to be nearest to the taxpayer's true position when his tax affairs were finalised; and that, since the taxpayer's admitted losses would as a matter of reality result in his having no schedule E liability for 2002/03, the commissioners' determination to amend his coding was justified.