Grounds of appeal seen by appellate court disputing judge's finding of fact on defendant's honesty - unclear at hearing whether challenge live or claimant's position changed - fairness requiring absolute clarity whether finding of honesty under challenge

IS Innovative Software Ltd v Howes: CA (Lords Justice Tuckey, Rix and Neuberger):19 February 2004

The claimant sought damages from the defendant in tort.

The judge dismissed the claim.

The claimant appealed.

The grounds in the appellant's notice challenged the judge's finding of fact as to the defendant's honesty, but at the hearing it was unclear whether that challenge was live or the claimant's position had changed.

Guy Tritton (instructed by Christopher Davidson & Co, Cheltenham) for the claimant; the defendant in person.

Held, dismissing the appeal, that it was not fair, either on an appellate court or on the respondent to an appeal, if an appellant failed to make clear whether a first instance finding of fact was being challenged, particularly when that fact involved the honesty of a respondent, or if the appellant changed its position on the issue or failed to make clear the respect in which, and the grounds on which, that finding was being so challenged; that much of the benefit of the Court of Appeal reading papers in advance was destroyed if the grounds of the appeal were unclear or changed, particularly when they related to a judge's finding of fact and especially when that finding was in relation to the honesty of a witness or a party; and that, furthermore, it was unfair on a respondent, particularly where he was in person, if it were not made crystal clear to him whether a finding by the judge that he was honest was under challenge or not.

Court of Appeal (Civil Division) - Special Immigration Appeals Commission having dismissed detainee's appeal against certification as suspected international terrorist granting bail on medical grounds - no right of appeal against grant of bail

G v Secretary of State for the Home Department: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Pill and Laws): 9 March 2004

G was detained and certified by the secretary of state as a 'suspected international terrorist' under section 21(1) of the Anti-terrorism, Crime and Security Act 2001.

His appeal against certification was dismissed by the Special Immigration Appeals Commission.

Shortly thereafter he applied for bail on medical grounds.

Bail was granted on strict conditions.

The secretary of state applied for permission to appeal against the granting of bail.

Wyn Williams QC, Ian Burnett QC and Tim Eicke (instructed by the Treasury Solicitor) for the secretary of state; Ben Emmerson QC, Raza Husain and Danny Friedman (instructed by Birnberg Pierce and Partners) for G.

Held, declining jurisdiction, that there was no statutory right of appeal under section 7 of the Special Immigration Appeals Commission Act 1997 against a commission decision to grant bail to a detainee certified as a 'suspected international terrorist' under section 21(1) of the 2001Act where the application for bail was not material to an appeal from a final determination; that section 24 of the 2001 Act provided no right of appeal against the grant of bail, and therefore the Court of Appeal (Civil Division) had no jurisdiction to entertain an appeal brought by the secretary of state against the commission's decision to grant bail to a detainee whose appeal against certification had been dismissed; but that the court would reconstitute as a Divisional Court to consider whether the commission's decision to grant bail were amenable to judicial review.

(WLR)

GMC committee hearing complaint of misconduct - committee seeing irrelevant prejudicial publicity - fairness requiring grant of short adjournment to allow applicant to seek stay

R (Mahfouz) v General Medical Council: CA (Lords Justice Waller, Sedley and Carnwath):5 March 2004

The applicant discovered that members of the professional conduct committee hearing complaints raised against him had seen in newspapers, published after the first day of the hearing, prejudicial material not otherwise in evidence.

The committee declined to recuse themselves from the hearing and refused the applicant's request for a short adjournment of some 27 hours, pending his application to the High Court to stay proceedings.

He applied for judicial review of those decisions.

The judge rejected the application.

The applicant appealed.

Mary O'Rourke (instructed by Mayer Brown Rowe & Maw); for the applicant; Robert Englehart QC and Gerard Clarke (instructed by Field Fisher Waterhouse) for the GMC.

Held, allowing the appeal in part, that knowledge of prejudicial publicity did not have to be fatal to the fairness of a hearing but its effects had to be considered in the context of the proceedings as a whole, including the impact of the legal advice available; that where as a matter of law there was a possible breach of the rules of natural justice as well as a potential procedural irregularity within the applicable rules, the legal assessor was under a duty not simply to pose questions to the committee but also to provide advice as to the answers, looking at the matter in the same way as would a judge directing a jury, while taking account of the special characteristics of the committee; that in general it was preferable for proceedings to take their course and a challenge to their validity be taken by way of appeal, but each case had to be judged on its particular circumstances; and that, accordingly, while there was no basis for questioning the committee's ability to decide the case fairly on the evidence before it, fairness and the appearance of fairness required the grant of the limited adjournment requested.