EMPLOYMENT
Negligence - employee's psychiatric injury caused by work-related stress - employer liable
Barber v Somerset County Council: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe): 1 April 2004
The claimant, who worked long hours as a schoolteacher, began in 1996 to suffer from stress and depression.
He consulted his doctor, and in May-June was off work for three weeks.
Although he spoke to his headmistress and her deputies about his problems, little was done.
In November he had a mental breakdown, after which he was unable to work again as a teacher.
He brought an action against his employers, the education authority, for damages for negligence, and the trial judge gave judgment in his favour.
The Court of Appeal, however, allowed the authority's appeal.
The claimant appealed.
Brian Langstaff QC and Andrew Buchan (instructed by Graham Clayton, Exeter) for the claimant; Andrew Collender QC, Andrew Hogarth QC and Charlotte Reynolds (instructed by Veitch Penny, Exeter) for the education authority.
Held, allowing the appeal (Lord Scott of Foscote dissenting), that although an employer could usually assume that employees could cope with the pressures of the job there would be circumstances where it needed to take positive steps to assist an employee who was having difficulty; that the trial judge had been entitled to hold that when in June or July 1996 the claimant had spoken about his problems to the school's senior management team they should have done more to investigate and attempt to ease them; and that the Court of Appeal should not have interfered with his decision.
(WLR)
FAMILY
Ancillary relief - jurisdiction to vary post-nuptial settlement subsisting despite removal of nuptial features - court not obliged to apply proper law of settlement
C v C (Ancillary Relief: Nuptial Settlement) FD (Mr Justice Wilson): 2 April 2004
The wife applied, in ongoing ancillary relief proceedings, for an order under section 24(1)(c) of the Matrimonial Causes Act 1973 to vary a post-nuptial discretionary settlement made on the parties, ostensibly by the husband's mother, which provided that Jersey law was its proper law and that the Jersey courts had exclusive jurisdiction.
The husband resisted the application on the basis that the removal of the parties as beneficiaries in January 2001 had removed the features that had made the settlement nuptial, rendering it no longer a settlement capable of variation and, furthermore, that any jurisdiction to vary the settlement was vested solely in the Jersey court.
The question of jurisdiction was determined as a preliminary issue.
Valentine Le Grice QC and Thomas Carter (instructed by Philippou & Co, London) for the wife; Timothy Scott QC and Christopher Wagstaffe (instructed by Bolt Burdon, London) for the husband.
Held, that since section 24(1)(c) conferred jurisdiction to vary a nuptial settlement made on the parties to a marriage and did not expressly provide that the features which made the settlement nuptial should subsist the court had jurisdiction to vary a post-nuptial settlement provided only that the settlement continued to exist at the date of the order and notwithstanding that the features that made it nuptial had been removed from it; that, since provisions as to variation of settlements following divorce related to the personal and proprietary effects of marriage, the Recognition of Trusts Act 1987 did not require the court to apply the proper law of the settlement instead of English law, nor could the exclusive jurisdiction clause in the settlement derogate from the jurisdiction of the court.
(WLR)
INSOLVENCY
Winding-up petition pleading for public interest reasons - petition presented otherwise than in pursuit of private interest arising from status as creditor abuse of process
In re Millennium Advanced Technology Ltd: ChD (Michael Briggs QC sitting as a deputy High Court judge): 2 April 2004
A creditor of a company petitioned for its winding up on the just and equitable ground contained in section 122(1)(g) of the Insolvency Act 1986, giving as its principal reason that it would be in the public interest.
The company applied to strike out the petition.
The authority resisted the application on the basis that a creditor could establish his locus standi to bring a winding-up petition under section 124 of the Act purely by proof of his status as such and that it could not possibly be an abuse of process for a creditor with locus standi to petition for the winding-up of a company which, it was alleged, had dishonestly misappropriated public money.
Abu Ahmed, director, for the company; Ashley Underwood QC (instructed by Edwin Coe, London) for the creditor.
Held, refusing the application, that a creditor's petition to wind up a company was an abuse of process unless the petition was brought in pursuance of the creditor's private interest attributable to his status as a creditor; but that, since it could not be said that a winding up of the company was not in the private interest of the petitioner as creditor, the pleading of public interest reasons did not render the proceedings an abuse of process.
LAND
Right of way - statute prohibiting user 'without lawful authority' - no bar to acquisition of easement under presumption of lost modern grant
Bakewell Management Ltd v Brandwood and others: HL (Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Baroness Hale of Richmond): 1 April 2004
The then owner of common land in 1927, by a deed under section193(2) of the Law of Property Act 1925, allowed public access to it for air and exercise.
For many years thereafter owners of properties adjoining the common, without seeking or obtaining the landowner's consent, gained vehicular access to them by driving from the public highway along tracks or roads over the common.
Section 193(4) of the 1925 Act made it an offence to do so 'without lawful authority'.
The claimants became the owners of the common in 1986 and brought proceedings seeking a declaration that the defendant property owners were not entitled to cross the common with motor vehicles.
The defendants claimed to have acquired an easement by prescription under section 2 of the Prescription Act 1832 or by lost modern grant by virtue of 20 years or more of uninterrupted user access.
The judge granted the declaration sought.
The Court of Appeal (see [2003] Gazette, 20 March, 32) [2003] 1 WLR 1429 dismissed an appeal by 43 defendants, holding that an easement could not be acquired by conduct that had been prohibited by statute.
The defendants appealed.
Paul Morgan QC and Janet Bignell (instructed by Berger Oliver, London) for the defendants; Hazel Williamson QC and Leslie Blohm (instructed by Darwin Gray, Cardiff) for the claimants.
Held, allowing the appeal, that a lost modern grant could not be presumed where an actual grant by the landowner would have been unlawful; but that public policy did not bar acquisition of an easement by long and uninterrupted user in breach of a statutory prohibition if the landowner could lawfully have made a grant which would have removed the criminality of the user.
(WLR)
PRACTICE
Stay of proceedings - application to lift stay automatically imposed following inactivity - matters to be considered in deciding whether to lift stay
Flaxman-Binns v Lincolnshire County Council: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Clarke and Lord Justice Jacob): 5 April 2004
In January 1993 the plaintiff commenced an action for damages against his local education authority alleging that it was negligent in failing to provide him with appropriate therapy for his serious speech impediment.
The action did not proceed for various reasons and on April 25, 2000 it was automatically stayed for inactivity, pursuant to paragraph 19(1) of the transitional arrangements practice direction to CPR part 51.
The plaintiff, who was not then legally aided, was not aware of the practice direction or of its effect.
In January 2001 the authority's solicitors wrote to the plaintiff informing him that they would be seeking an order dismissing the action, whereupon the plaintiff instructed solicitors who applied to have the automatic stay lifted.
The judge dismissed the application and the action.
The plaintiff appealed.
Roger Haar QC (instructed by McKinnells, Lincoln) for the plaintiff; John Norman (instructed by Edwards Geldard, Nottingham) for the council.
Held, allowing the appeal and lifting the stay, that in determining whether to lift an automatic stay imposed pursuant to practice direction 51.19, the court had to consider each of the circumstances listed in CPR rule 3.9, but having done so it should stand back and assess the significance and weight of all the relevant circumstances overall to arrive at the most just, or least unjust, solution.
PROFESSIONS
Charges of misconduct admitted to by nurse - professional conduct committee imposing - Council for the Regulation of Health Care Professionals having power to appeal unduly lenient penalty
Council for the Regulation of Health Care Professionals v Nursing and Midwifery Council and another: QBD (Mr Justice Collins): 31 March 2004
A nurse specialising in paediatric care admitted to charges of misconduct, having accessed explicit and/or offensive Web sites on the Internet.
The professional conduct committee imposed a caution on him which would remain on his record for five years.
The Council for the Regulation of Health Care Professionals (CRHCP) appealed against that penalty on the ground that it was unduly lenient and nothing short of a removal from the register would have been appropriate in the circumstances.
Thomas de la Mare (instructed by Baker & McKenzie, London) for the CRHCP; Robert Lawson (instructed by Penningtons, Godalming) for the Nursing and Midwifery Council; Karen Johnson (instructed by Director of Legal Services, Royal College of Nursing) for the nurse.
Held, dismissing the appeal, that the powers conferred on the CRHCP extended widely and enabled reconsideration of not only the measure taken against the individual, if it were believed to be too lenient, but also a decision not to take any measure, whether or not it was too lenient; that that power needed to be most carefully and sparingly exercised, but it was one which Parliament clearly intended to confer; that the burden rested on the CRHCP to establish that the action in question was unduly lenient; that there was an element of double jeopardy of which account needed to be taken, although that was of less importance in the context of the National Health Service Reform and Health Care Professions Act 2002 because the emphasis was on the protection of the public rather than punishment of the individual concerned; and that, on the facts, while there was no doubt that the penalty was lenient, undue leniency had not been established.
REVENUE
Corporation tax - capital allowances - expenditure on installation of all-weather race track not incurred on plant or machinery so not qualifying for relief
Shove (Inspector of Taxes) v Lingfield Park 1991 Ltd: CA (Lords Justice Potter, Mummery and Scott Baker): 31 March 2004
In 1991 the taxpayer company incurred expenditure of 2.9 million on installing an artificial all weather track so that it could carry on horse racing in all conditions.
The tax inspector refused to allow it to deduct the expenditure under section 24 of the Capital Allowances Act 1990 in computing its corporation tax liability for the relevant period.
General commissioners upheld the company's appeal, concluding in the light of the relevant authorities that the artificial track retained a separate identity from the grass track and buildings and as such was not part of the premises but functioned as plant.
Mr Justice Hart [2003] (see [2003] Gazette, 18 September, 33) STC 1003 allowed the revenue's appeal.
The company appealed.
David Milne QC and Elizabeth Wilson (instructed by Nicholson Graham & Jones, London) for the company; Timothy Brennan QC (instructed by the Solicitor, Inland Revenue) for the revenue.
Held, dismissing the appeal, that section 24 of the Capital Allowances Act 1990 provided for expenditure incurred on plant or machinery to qualify for relief but there was no statutory definition of 'plant'; that the issue was whether the artificial track functioned as part of the company's premises or was apparatus, separate from the premises where the company's business was conducted; that the commissioners' decision flew in the face of the ordinary meaning of the statutory language and was wrong in law; and that the only conclusion open to them had been that the artificial track functioned as part of the premises of the company's business and thus the expenditure failed to qualify for relief.
ROAD TRAFFIC
Highway - duty of authority to maintain - not including provision of road signs
Gorringe v Calderdale Metropolitan Borough Council: HL (Lord Steyn, Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood): 1 April 2004
The claimant, driving her car on a country road at a point where there was a sharp crest followed by a curve and seeing a bus approaching beyond the crest, braked, skidded and hit the bus, sustaining serious injuries.
The bus driver was not to blame.
The claimant brought proceedings against the local highway authority alleging negligence and/or breach of statutory duty and contending that the authority had been to blame for the accident in not giving her proper warning of the hazard posed by the crest in the road by providing a 'slow' sign.
There had some years previously been such a sign painted on the road surface some 175 metres before the crest, but it had become obliterated, probably because of road repairs.
The trial judge gave judgment in the claimant's favour.
The Court of Appeal (see [2002] Gazette, 30 May, 32) [2002] RTR 446 by a majority allowed an appeal by the authority.
The claimant appealed.
Giles Wingate-Saul QC and Mark Laprell (instructed by Clarksons, Halifax) for the claimant; Mark Turner QC and Richard Hone QC (instructed by Hill Dickinson, Manchester) for the authority.
Held, dismissing the appeal, that the duty in section 41(1) of the Highways Act 1980 to 'maintain the highway' was a duty to put and keep it in repair and did not include the provision of information by means of street furniture or painted signs; and that the public law duties in section 39(2)(3) of the Road Traffic Act 1988 to take appropriate measures did not give rise to a parallel common law duty to provide warning signs.
(WLR)
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.ukWLR means that a report has been submitted for publication in the Weekly Law Reports
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