Criminal

Evidence - recent complaint evidence from complainant's schoolfriend not fully consistent with evidence of complainant - evidence admissible if sufficiently consistent so as to be capable of supporting credibility of complainant

R v Spooner: CA (Lord Justice Thomas, Mr Justice Holland, and Judge Baker QC): 25 May 2004

The defendant was convicted of offences of indecent assault, buggery, rape and gross indecency.

The complainant, S, alleged that the defendant began abusing her when she was nine or ten years old.

That abuse took the form of indecent touching and continued until S was 19.

S gave evidence that from the age of ten or 11, she was also subjected to more serious form of sexual abuse.

Evidence of S's complaint to her schoolfriend, C, was admitted at trial.

C's evidence was that S had told her about the indecent touching.

In giving her evidence, S implied that she had also told C about the more serious sexual abuse.

The defendant appealed against his conviction on the basis that C's evidence should not have been admitted because the evidence set out in the statements of C and S was inconsistent with the sexual conduct of which S complained.

Mark Evans QC (assigned by the Registrar of Criminal Appeals) for the defendant; John Hillen (instructed by Crown Prosecution Service, Maidstone) for the Crown.

Held, allowing the appeal on the ground of the judge's misdirection, that the question of admissibility of evidence of recent complaint depended, applying the established principles, on whether such evidence was sufficiently consistent that it could, depending on the view taken of the evidence by the jury, support or enhance the credibility of the complainant; that provided such evidence did support the credibility of the complainant, it was both fair to a defendant and in accordance with established principles to permit the evidence to be given and to allow the jury to assess its weight; that it was not necessary that the recent complaint disclosed the ingredients of the offence; that it would, however, usually be necessary that the complaint disclosed evidence of material and relevant unlawful sexual conduct by the defendant which could support the credibility of the complainant; that C's evidence was capable of supporting the credibility of S's evidence in the the witness box in relation to the more serious allegations and was properly admitted; that, however, because of the misdirection, the appeal against conviction would be allowed.

Practice

High Court - jurisdiction - declaration to indemnify - court having jurisdiction to grant declaratory relief to indemnity claimant against potential claim claimant might face.

Arbuthnot Pensions & Investments Ltd v Padden: CA (Lords Justice Kennedy, Buxton and May): 13 May 2004

The defendant worked as a financial adviser to the claimant, a financial services company.

In the course of his employment the defendant misappropriated a substantial amount of money received from a client of the claimant for investment.

When the claimant discovered the defendant's wrongdoing and subsequently the defendant made a compromise agreement with the client whereby he undertook to repay the money by installments.

The defendant made only one payment under that agreement.

The claimant sought a declaration that the defendant should indemnify it against all claims that might be made by the client; the defendant contended that since the client had not brought any claim against it yet and he had already reached a compromise agreement with her, the claimant's claim was no more than hypothetical and would not serve any useful purpose.

The judge granted the declaration.

The defendant appealed.

Jonathan Miller (instructed by DKLL Solicitors, Ewell, Surrey) for the defendant; Neil Kitchener (instructed by CMS Cameron McKenna, Bristol) for the respondent.

Held, dismissing the appeal, that under CPR rule 40.20 the court was empowered to grant declaratory relief, which was a discretionary jurisdiction; that although where there was only a very remote possibility of the claimant having to meet a claim against it by the client a court might say it would not grant a declaration, the interests of justice and the overriding objective of CPR rule 1.1 made it entirely appropriate for the court as a matter of discretion to grant the relief sought.

Trade

Sale of goods - avoidance of exclusion of terms implied by statute - 'consumer' including company not acting in course of business

Feldaroll Foundry Plc v Hermes Leasing (London) Ltd and others: CA (Lords Justice Kennedy, Tuckey and Kay): 11 May 2004

The claimant company's managing director bought a car from a dealer.

The dealer arranged for the car to be sold to the defendant, a finance company, which in turn entered into a car-leasing agreement with the claimant, whereby the claimant agreed to purchase the car for 65,000, payable by 40 monthly installments.

The agreement expressly excluded all warranties and conditions as to the condition, description, quality or fitness of the car.

After accepting the delivery the director found several defects in the car, which he returned to the dealer.

He served a notice on the defendant rejecting the car; the dealer subsequently went into liquidation.

The county court held that section 6 of the Unfair Contract Terms Act 1977 (as amended) rendered the exclusion clause void, and the implied warranties under sections 9-11 of the Supply of Goods and Services Act 1982 entitled the claimant to reject the car and to reclaim any payments made.

The defendant appealed.

Richard Mawrey QC and Donald McConville (instructed by Bates Travell, Southend) for the defendant; Philip Jones (instructed by Stevensdrake, Crawley) for the claimant.

Held, dismissing the appeal, that for the purpose of the Sale of Goods Act 1979 with reference to the purchase of the car, 'consumer' could extend to cover legal persons like companies; that, in the circumstances, the claimant had purchased the car as a consumer and not in the course of its business so that it was entitled to reject the car for failing to be of satisfactory quality and fit for the purpose.

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