CONTRACT

Property sold to defendant - dispute over full payment of purchase price - compromise agreement requiring defendant to sell property at best price available - not contract for sale or disposition of interest in land required to be in writing

Nweze and another v Nwoko; CA (Lord Justice Waller, Lord Justice Sedley and Lord Justice Carnwath): 29 March 2004

The claimants sold a property to the defendant.

They then brought proceedings to enforce the purchase, seeking full payment of the purchase price.

The parties made an oral compromise, which provided by one of its terms that the property would be sold with vacant possession at the best price available.

The recorder held that the terms were sufficiently certain to be enforceable and the compromise was supported by consideration, and made an order for specific performance of the agreement.

The defendant appealed.

Joseph Harper QC (instructed by Payne Hicks Beach, London) for the defendant; Sarah Asplin QC and Phillip Aliker (instructed by Charles de Alwis, Romford) for the claimants.

Held, dismissing the appeal, that an oral compromise of a dispute between parties relating to the purchase of a property containing a term requiring one party to sell the property at the best price available was not 'a contract for the sale or other disposition of an interest in land' under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 which would require that the agreement was made in writing; and that, accordingly, the agreement was enforceable.

CRIMINAL

Evidence - admissibility - computer printout detailing attempts to gain access to Web site - admissible as real evidence

R(O) v Coventry Magistrates' Court: QBD (Mr Justice Gage and Mr Justice Keith): 5 April 2004

The claimant was charged with three offences of unlawfully inciting another to distribute an indecent photograph of a child and three offences of attempted incitement based on evidence contained on a computer printout that he gained access to child pornography sites and paid the required entrance fee to the sites by using his credit card.

The district judge committed the claimant to trial.

The claimant sought judicial review on the ground, among other things, that the evidence was inadmissible as hearsay.

Gavin Purves (instructed by Barker Gillette, London) for the claimant; David Perry and Dennis Desmond (instructed by the Crown Prosecution Service, Birmingham) for the interested party, the Crown Prosecution Service.

Held, dismissing the application, that although the information was keyed into the computer by someone, the evidence was purely of a computer and that the district judge was correct to admit the printout as real evidence.

Defendant pleading guilty to speeding offences - sentenced over two years later - breach of right to hearing within reasonable time - appropriate remedy reduction in sentence

Miller v Director of Public Prosecutions: QBD (Mr Justice Richards): 25 March 2004

The defendant pleaded guilty to three separate speeding offences committed in February 1999.

He was not sentenced until 6 September 2001.

The defendant appealed by way of case stated.

Nigel Ley (instructed by Kaye Tesler & Co, London) for the defendant; Peter Doyle QC (instructed by Crown Prosecution Service, Snaresbrook, Stratford) for the Director of Public Prosecutions.

Held, allowing the appeal, that a total period of over two years in the magistrates' court and a further year or so in time wasted over the appeal, in such a simple case with guilty pleas, was excessive and in breach of the defendant's right under article 6 of the European Convention on Human Rights to a hearing within a reasonable time; that in considering the appropriate remedy, the court could properly take into account the period of unreasonable delay in deciding under section 35(1) of the Road Traffic Offenders Act 1988 whether in all the circumstances there were grounds for mitigating the normal consequences of the defendant's convictions; and that a reduction in the period of disqualification was a just and appropriate remedy in the circumstances.

Keeping embryo otherwise than in pursuance of licence - 'person responsible' for activities authorised by licence - not automatically 'keeper' of embryo

Attorney-General's Reference (No 2 of 2003): CA (Lord Justice Judge, Mr Justice Elias and Mr Justice Stanley Burnton): 1 April 2004

The defendant, a consultant obstetrician and gynaecologist, practised at two clinics licensed for the purposes of the Human Fertilisation and Embryology Act 1990 and was the 'person responsible' for the supervision of the activities authorised by licences granted to the clinics.

The sole embryologist at the clinics was convicted of making false claims for the cost of thawing frozen embryos, which he had not done.

It was never suggested that the defendant knew about those criminal activities but he was charged with keeping an embryo otherwise than in pursuance of a licence under the 1990 Act, contrary to sections 3(1)(b) and 41(2)(a) of the Act.

The trial judge ruled that as a matter of law the defendant was not a 'keeper' of the embryos and directed the jury to acquit.

The Attorney-General referred the question to the Court of Appeal whether 'the person responsible' as a matter of law 'keeps' the embryo.

Aftab Jafferjee (instructed by the Crown Prosecution Service, Headquarters, London) for the Attorney-General; Alan Jenkins (instructed by Clyde & Co, London) for the acquitted person; Kristina Stern (instructed by the London office of Bevan Ashford) for the interested parties.

Held, answering the question in the negative, that a person could only be criminally responsible, under section 3 of the 1990 Act, for keeping an embryo otherwise than in pursuance of a licence, if, as a matter of fact, he was the person keeping the embryo; that the 'person responsible' for the activities authorised by the licence, as defined by section 17 of the Act, was not criminally liable solely by virtue of his appointment; and that, accordingly, the judge's ruling was correct.

(WLR)

DAMAGES

Employee injured at work - tortfeasor employer making ex gratia payment to employee - further sums paid out of group insurance policy for which premiums paid by employer - sums received susceptible to set-off

Gaca v Pirelli: CA (Lord Justice Brooke, Lord Justice Mummery and Lord Justice Dyson): 26 March 2004

The claimant suffered an accident at work and his employment was later terminated on grounds of ill-health.

The defendant employer made a payment ex gratia and the claimant also received sums paid out of a group insurance policy.

Liability for the accident was accepted, but when damages were being assessed, the claimant contended that the sums received were exempt from set-off against any award because they fell within the benevolence or insurance exceptions.

The recorder, following McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 WLR 963, upheld the submission as to the benevolence exception.

The employer appealed; the claimant cross-appealed on the ground that in any event the insurance exception applied.

John Foy QC and Nicolas Hillier (instructed by Lamport Bassitt, Southampton) for the claimant; Robert Moxon Browne QC and Barry Cotter (instructed by Capital Law, Southampton) for the employer.

Held, allowing the appeal and dismissing the cross-appeal, that McCamley was no longer to be followed in such cases; that there was no reason for generally extending the scope of the benevolence exception to include payments made by tortfeasors to their victims, and the payment of benefits under an insurance policy was not equivalent or analogous to a payment made by a third party out of sympathy for the plight of a victim of an accident; that the insurance exception was also inapplicable since it was clear that it was the claimant who was to pay the premium in such a case, and he had not done so; and that, accordingly, the monies received were not exempt from set-off against damages.

(WLR)

EMPLOYMENT

Working time provisions - employee contracted to work 39 hours with overtime if required - worked on average 58 hours - payment for annual leave at 'rate of a week's pay' properly based on contractual hours

Bamsey and Others v Albon Engineering and Manufacturing plc: CA (Lord Justice Auld, Lord Justice May and Lord Justice Jacob): 25 March 2004

The employee was contracted to work a basic 39-hour week with overtime if required.

On average he worked a 58-hour week but during his annual leave he was paid only at the contractual rate.

The employee applied for compensation, alleging that the employers had failed to pay him at the rate of a week's pay for each week of leave in contravention of regulation 16 of the Working Time Regulations 1998 and article 7 of the Working Time Directive 93/104/EC.

The employment tribunal dismissed the claim, holding that by section 234 of the Employment Rights Act 1996, the employee's normal working hours were the contractual hours; therefore the amount of a week's pay within regulation 16 was the amount payable for those 39 hours.

The Employment Appeal Tribunal dismissed the appeal.

The employee appealed.

John Hendy QC and Oliver Segal (instructed by Thompsons, London) for the employees; Thomas Linden (instructed by the Treasury Solicitor) as advocate for the court.

Held, dismissing the appeal, that where an employee was contracted to work 39 hours per week but in fact regularly worked a 58-hour week, section 234 of the 1996 Act determined his normal working hours; that where payment varied with the amount of work done, the normal working hours were the contractual hours within section 234; that the directive left it to member states to calculate the amount of remuneration payable in respect of annual leave and accordingly payment during weeks of annual leave at the contractual rate did not infringe article 7 of the directive.

EQUITY AND SUCCESSION

Enduring power of attorney - sister claiming brother unsuitable as mother's attorney - hostility between siblings no bar to appointment

In re F (Enduring Power of Attorney): ChD (Mr Justice Patten): 2 April 2004

The donor executed a power of attorney in favour of her son, a retired solicitor.

She had one son and a daughter between whom there was a considerable amount of animosity and disagreement.

The daughter applied to be appointed as her mother's receiver under section 99 of the Mental Health Act 1983 and the son subsequently applied to register the power of attorney.

The daughter objected to the registration of the power of attorney under section 6(5)(e) of the Enduring Powers of Attorney Act 1985 on the ground that the son was unsuitable to be his mother's attorney given that the mother had told the Lord Chancellor's Medical Visitor that she wished her son and daughter to agree and that if they could not agree, then it would be better for an independent receiver to be appointed to deal with her affairs.

The Master of the Court of Protection upheld the sister's objection on the ground that the power of attorney was likely to be a stumbling block to any possible reconciliation between the siblings.

The brother appealed.

The brother in person; Leon Sartin (Harding Evans, Newport) for the sister.

Held, allowing the appeal, that the court had to be satisfied not of the chosen attorney's suitability but rather that he was unsuitable to be the attorney; that hostility between siblings might render a sibling unsuitable in cases where the estate was complex and there was clear evidence either that the hostility would impede the proper administration of the estate or where it would cause significant distress to the donor; that where, however, the estate was simple and there would be no adverse impact on the administration of the estate caused by the hostility, then it was not appropriate to remove a chosen attorney in the absence of any effective challenge to his competence or integrity; that there was no evidence that the hostility would hinder the administration of the estate, nor was there any evidence to suggest that the son was unsuitable on any other grounds, and furthermore the appointment of an independent receiver would, if anything, exacerbate the hostility between the siblings; and that, accordingly, the registration of the power of attorney should proceed.

PRACTICE

Discovery - application for pre-action disclosure by prospective claimant - judge determining issue central to substantive proceedings - incorrect approach

Rose v Lynx Express Ltd and another: CA (Lord Justice Peter Gibson, Lord Justice Mance and Lord Justice Keene): 7 April 2004

On an application for pre-action disclosure under CPR rule 31.16, the judge concluded that the main issue in the anticipated proceedings was so central to the question of whether disclosure should be ordered that it was suitable for determination as a preliminary issue.

He duly decided the issue against the applicant, and dismissed his application, holding that the conditions in rule 31.16(3)(c) and (d) were not satisfied.

The applicant appealed.

David Mabb QC and Nigel Dougherty (instructed by Harvey Ingram Owston, Leicester) for the applicant; Robin Knowles QC and Lucy Frazer (instructed by Travers Smith Braithwaite, London) for the respondents.

Held, allowing the appeal, that it was unsatisfactory to have a situation in which an issue was decided one way for one purpose, but might later be reargued and possibly decided differently during the course of subsequent proceedings; that, whether or not the determination would be binding at the trial of the substantive claim, there were practical dangers about considering any substantive issue, and particularly the core issue in the action, in the context of an application for pre-action disclosure; that courts therefore should be hesitant, in the context of a rule 31.16 application, about embarking upon any determination of substantive issues in the case; that in order to found an application under rule 31.16, it would normally be sufficient for the substantive claim to be properly arguable and to have a real prospect of success; and that, accordingly, pre-action disclosure would be ordered.

PROFESSIONS

Doctor - Family Health Service Appeal Authority - national disqualification of medical practitioner - function of authority on review

Kewel Krishnan Kataria v Essex Strategic Health Authority: QBD (Mr Justice Stanley Burnton): 1 April 2004

The appellant requested a review under section 49N(7) of the National Health Service Act 1977 of a national disqualification from working within the NHS imposed upon him by the NHS Tribunal.

The Family Health Services Appeal Authority dismissed his application and confirmed his disqualification.

It was submitted on his behalf that the authority was entitled to reconsider the decision of the tribunal.

The authority decided that it had to accept the decision of the tribunal and to decide whether the appellant had established that his conduct since its decision justified a revocation.

The appeal was on various grounds, including that the authority erred in law in misconceiving its function and refusing to reconsider the correctness of the decision or of the findings of the tribunal.

Charles Foster (instructed by Hempsons, London) for Dr Kataria; Angus Moon (instructed by Clyde & Co, London) for Essex Strategic Health Authority.

Held, dismissing the appeal, that it was not the function of the authority to investigate whether the procedures of the earlier tribunal were flawed or its findings of fact correct or the disqualification justified; that the word 'review' of itself gave no relevant guidance as to the scope of inquiry by the authority; that section 49N(7) of the 1977 Act referred not to a review of an earlier tribunal's decision, but to a review of a national disqualification which could be confirmed or revoked; that there was no machinery to prevent multiple requests for the reconsideration of the original decision and it was difficult to believe that Parliament had intended to allow repeated reconsiderations and rehearings; that it was most unlikely that Parliament intended that a subsequent tribunal of equal standing to the first tribunal was required to hear and rule on contentions of unfairness, procedural irregularity or factual incorrectness; and that there was nothing in authorities cited or in related subordinate legislation to lead his Lordship to depart from his provisional view as to the function of the authority on a review.

REVENUE

Income tax (Schedule D) - travel expenses of milkman operating under franchise agreement - not incurred wholly and exclusively for trade purposes

Powell v Jackman (Inspector of Taxes): ChD (Lewison J) 10 March 2004

The claimant entered into a franchise agreement with a dairy to deliver milk from a depot 28 miles from his home.

He travelled daily by car to the depot where he collected his electric float, milk and other products for delivery to his customers.

The claimant paid all his own expenses, including a weekly service charge for use of the depot.

No office facilities were available at the depot, the claimant using his home as an office and place where customers contacted him.

A special commissioner upheld his claim that the expenses of travel from home to the depot were wholly and exclusively expended for trade purposes and deductible in assessing Schedule D income tax under section 74 of the Income and Corporation Taxes Act 1988.

The revenue appealed.

Ingrid Simler (instructed by the Solicitor, Inland Revenue) for the revenue; Barrie Akin (instructed by Baker Tilly, accountants) for the claimant.

Held, allowing the appeal, that, although in Horton v Young [1972] Ch 157, CA, a bricklayer trading on his own account had been allowed to claim daily travel expenses on the basis that his home was the base of his operations, it was difficult to lay down where the distinguishing line was to be drawn, each case having to turn on its own facts; that the test was whether, within the statutory words, the expenditure was 'wholly and exclusively' expended for trading purposes; that the claimant, being required to make the daily journey to the depot to collect equipment and products, had failed to show that his home was the base of operations; and that, accordingly, he was not within the statutory language and not entitled to the deductions claimed.

TRADE

Claimant proprietor of Community Trademark bringing infringement proceedings - defendant claiming mark invalid - trader having reputation protectable by passing-off - proprietor of relevant rights for purposes of Community law

Compass Publishing BV v Compass Logistics Ltd: ChD (Mr Justice Laddie): 24 March 2004

The claimant was the proprietor of a number of trademarks for the word 'Compass', including a Community Trademark registered in April 1996 under Council Regulation (EC) No 40/1994 (OJ 1994 L11, p1).

The defendant had traded under or by reference to the name or mark 'Compass Logistics' since May 1995, occasionally abbreviated to 'Compass'.

The claimant brought an action for infringement against the defendant which, in turn, raised a CPR part 20 claim for revocation and invalidity on the basis that by the date of registration of the marks, the defendant had acquired a valuable and protectable goodwill in relation to the use of the sign 'Compass Logistics'.

The question of validity raised issues of law concerning the construction of article 8(4) of the regulation, which provided certain grounds for refusing to register a Community Trademark.

Iain Purvis (instructed by Wragge & Co, London) for the claimant; Roger Wyand QC and Michael Edenborough (instructed by Hepworth Lawrence Bryer & Bizley, Rugby) for the defendant.

Held, allowing the claim, that on its proper construction, article 8(4) of the regulation was designed to prevent the registration of marks which conflicted with earlier rights; that, accordingly, a trader who had a reputation protectable by passing-off was to be treated as a proprietor of relevant rights for the purposes of the article; that, however, the defendant's passing-off rights could be categorised as of 'mere local significance' and the attack on validity failed; that the defendant had, moreover, infringed the Community mark.

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