Children Confidentiality Costs Housing Mental Disorder Mortgage Negligence Prison Taxation




CHILDREN



Care proceedings - serious injury allegations - civil standard of proof to be applied.



In re U (A Child) (Serious Injury: Standard of Proof); In re B (A Child): CA (Dame Elizabeth Butler-Sloss President, Lords Justice Thorpe and Mantell): 14 May 2004



The local authority in each case applied for a care order based on allegations that the mother had attempted to cause serious injury to her child. In the first case the judge had found the mother responsible for four incidents of deliberately imposed airway obstruction and, in the second case, that the mother had been responsible for 11 incidents of rigor.



The mother in the first case sought permission to appeal, and the mother in the second case appealed, on the grounds that, having regard to the guidance contained in R v Cannings [2004] EWCA Crim 1; [2004] Gazette, 5 February; [2004] 1 All ER 725, the judge had erred in her evaluation of the evidence and in finding that the threshold criteria under section 31(2) of the Children Act 1989 had been satisfied.



Andrew MacFarlane QC and Christopher Gibbons for the mother in the first case; Glenda Vencatachellum for the father in the first case; Judith Rowe QC and Sally Stone for the local authority in the first case; Margaret Hodgson for the children's guardian in the first case; Stephen Cobb QC for the mother in the second case; Charles Howard QC and Sarah O'Connor for the local authority in the second case; Eleanor Grey and Janet Waddicor for the Department of Education and Skills, intervening.



Held, refusing permission to appeal and dismissing the appeal, that the standard of proof in care proceedings remained the balance of probabilities test set out In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, in that the more improbable an event the stronger must be the evidence that it had occurred; that it was not correct in such cases to treat the distinction between criminal and civil standards of proof as largely illusory; that the responsibilities of local authorities under the 1989 Act had not been changed by the decision in R v Cannings; and that it remained the task of a local authority to protect the child, to assess the issues within their competence and expertise, to rely on their legal team to advise on the strength and credibility of the medical evidence, and to prepare an application for a care order in a suitable case based upon the civil standard of proof. (WLR)





 CONFIDENTIALITY



Employee covertly filming workplace - film not confidential material - public interest in disclosure not qualified by need to give owner of information right of right of reply.



Tillery Valley Foods Ltd v Channel Four and another: ChD (Mr Justice Mann): 11 May 2004


The claimant was a company producing frozen meals that were supplied to the healthcare and public sector markets. One of its employees was an undercover, investigative journalist who covertly filmed various working activities at one of the claimant's factories. Some of that material was then included in a television programme that the first defendant proposed to broadcast.



The claimant accepted that the public interest justified the broadcast of the programme, but contended that unless it was given a fair and reasonable opportunity to view footage and to respond the broadcast would constitute an unjustifiable breach of confidence. Accordingly, the claimant sought an injunction restraining the broadcast until it had had an informed right of reply.



Andrew Caldecott QC (instructed by Addleshaw Goddard, London) for the claimant; Adrienne Page QC (instructed by Farrer & Co, London) for the defendants.



Held, dismissing the claim, that it was not self-evident that, where an employee comprehensively filmed his workplace, working activities and workmates, that the material would inevitably have the quality of confidential information; that, in the circumstances, there was no information with the relevant quality of confidentiality to justify an order restraining its misuse; and that, in any event, the public interest in disclosure was not qualified by the need to give the owner of the information a right to respond or reply.





 COSTS



Successful defendant refusing to contemplate alternative dispute resolution - burden on unsuccessful party to show successful party acted unreasonably in all circumstances - court not particularly disposed to make adverse costs order where successful party public body.



Halsey v Milton Keynes General NHS Trust; Steel v Joy and another: CA (Lords Justice Ward, Laws and Dyson): 11 May 2004


The claimant in the first case had her claim under the Fatal Accidents Act 1976 dismissed. The county court judge awarded costs to the defendant despite the fact that the defendant had refused invitations by the claimant to mediate.



The first defendant in the second case, had his part 20 claim against the second defendant dismissed. The county court judge awarded the second defendant his costs despite the fact that the second defendant had refused to mediate. The claimant in the first case and the second defendant in the second case appealed.



Allan Gore QC (instructed by Osborne Morris & Morgan, Leighton Buzzard) for the claimant in the first case; Christopher Purchas QC and Huw Lloyd (instructed by Barlow Lyde & Gilbert, London) for the defendant in the first case; Charles Foster (instructed by Crutes, Newcastle upon Tyne) for the first defendant in the second case; Christopher Purchas QC and Howard Elgot (instructed by Ricksons, Leeds) for the second defendant in the second case; Lord Lester of Herne Hill QC (instructed by Diana Hartley, of the Law Society) for the Law Society as an interested party; Michel Kallepetis QC and Philip Bartle QC (instructed by Michael Lind, of the ADR Group) for the ADR Group as an interested party; the claimant in the second case did not appear and was not represented.



Held, dismissing the appeals, that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right to access the court; that to deprive a successful party of some or all of his costs on the grounds that he had refused to agree to alternative dispute resolution was an exception to the general rule, and the burden was on the unsuccessful party to show why the general rule should be departed from; that such departure was not justified unless it was shown that the successful party had acted unreasonably having regard to all the circumstances of the case; that the alternative dispute resolution pledge announced by the Lord Chancellor in March 2001 was no more than an undertaking that alternative dispute resolution would be considered and used in all suitable cases; and that there was no reason for the court to be particularly disposed to make an adverse costs order where the successful litigant was a public body. (WLR)





 HOUSING



Compulsory purchase order - property with mixed commercial and residential use - capable of being 'house'



Ainsdale Investments Ltd v First Secretary of State and another: QBD (Mr Justice Owen): 14 May 2004

The company owned a property that was used for mixed residential and commercial purposes. A housing committee of the council resolved to make a compulsory purchase order under section 17(1)(b) of the Housing Act 1985 for the purposes of the provision of housing accommodation.



Further to a public local inquiry, the secretary of state confirmed the order on the recommendation of a council inspector. The claimant appealed against the order on grounds, among other things, that neither of the decisions was authorised by section 17 of the Act, or alternatively that both of the defendants applied the wrong test when applying the section.



Stephen Cottle (instructed by Stephen Hendeles & Co, London) for Ainsdale Investments Ltd; Robert Palmer (instructed by the Treasury Solicitor) for the First Secretary of State; Romie Tager QC and Jonathan Ferris (instructed by Colin T Wilson, Director of Legal and Administrative Services, Westminster City Council) for Westminster City Council.



Held, dismissing the appeal, that the inclusion of the commercial parts of the property in the order was authorised by section 17 of the Act if incidental to the acquisition of the residential parts; that the test proposed by the company, that such an order had to be limited to the property 'absolutely necessary' to effect the statutory purpose, was a higher test than the test of whether the acquisition of the commercial part was incidental to the purpose, and that was a test for which there was no basis in law; that, in the context of section 17, 'house' might include parts used for commercial rather than residential purposes and the test was whether the property was a 'house' within the meaning of section 17, and if so whether it was required for housing purposes, and not whether each individual part of it was required for such purposes; and that, accordingly, the inspector was correct to have concluded that the property, consisting of one or two floors of commercial uses with additional floors of residential accommodation above and behind, whether or not actually used for living purposes, was a house for the purposes of section 17.





 MENTAL DISORDER



Discharge of restricted patient - health authority unable to comply with conditions imposed by mental health review tribunal- patient not unlawfully detained



R (W) v Doncaster Metropolitan Borough Council: CA (Lord Justice Judge, Lord Justice Mance and Lord Justice Scott Baker): 6 May 2004

The applicant was a mental patient detained pursuant to a restriction order under sections 37 and 41 of the Mental Health Act 1983. He claimed that for seven months or more he was detained in hospital when he should have been living in the community pursuant to a conditional discharge ordered by a mental health tribunal. In 2001 his case was referred to a mental health review tribunal and heard on 9 July 2001.



The tribunal ordered his discharge, but imposed conditions that he should be supervised by a psychiatrist and a social worker and that he should reside at appropriate accommodation approved by them. By December 2001 suitable accommodation had not been found and the case was referred back to the tribunal. The tribunal met on 6 March 2002, and again directed discharge subject to similar conditions.



The period of detention about which the claimant complained was that between the first tribunal hearing on 9 July 2001 and the second hearing on 6 March 2002. He claimed damages for false imprisonment and contended that failure by the respondent to take action to ensure the discharge within a reasonable time was a breach of article 5(1)(e) and 5(4) of the European Convention on Human Rights.



The claimant appealed the 13 February 2003 decision of Mr Justice Stanley Burnton refusing his application for judicial review of the respondent's failure to take the steps required by the mental health review tribunal's directing his conditional hospital discharge. Richard Gordon QC and Kris Gledhill (instructed by Howells, Sheffield) for the applicant; Robert Jay QC and Robert Weir (instructed by Halliwell Landau, Sheffield) for the respondent.



Held, dismissing the appeal, that the tribunal's July 2001 decision was that the applicant could be safely discharged provided that the conditions were fulfiled; that the respondent's obligation was only to use its best endeavours to implement the conditions; that the respondent's duty under section 117 of the 1983 Act, as the authority responsible for after-care subsequent to discharge, did not arise since the claimant had not been discharged in the period in question; that the respondent was neither the detaining authority nor the body to whom the applicant could look for review of the lawfulness of his detention, the former being the hospital where he was detained and the latter being the tribunal; that the respondent had used its best endeavours to implement the conditions imposed by the July 2001 tribunal; and that, accordingly, the claimant was not unlawfully detained nor was there was breach of article 5 or any other provision of the convention.





 MORTGAGE



Possession order - sub-mortgage - existence of sub-charge not divesting mortgagee of right to possession



Credit & Mercantile plc v Marks: CA (Lords Justice Clarke, Dyson and Wall): 13 May 2004

The mortgagor acquired a house with the assistance of a loan from the mortgagee secured by a legal charge on the property. Under the terms of the loan facility letter and the legal charge, the mortgagee had a right to repossess the property if the mortgagor failed, on demand, to pay the moneys due.



On the same day as the legal charge was executed, the mortgagee sub-charged the property to the sub-chargee. By that sub-charge the mortgagee agreed to pay to the sub-chargee, on demand, the whole of the indebtedness which it owed to the sub-chargee from time to time.



The mortgagor fell into arrears and the mortgagee, having issued formal demands for the immediate repayment of the loan, obtained a possession order. Mr Recorder Chapman dismissed the mortgagor's appeal against the possession order. The mortgagor appealed.



Kate Olley (instructed by Owen White, Slough) for the mortgagor; Geraint Jones QC and Philip Rainey (instructed by Glovers, London) for the mortgagee.



Held, dismissing the appeal, that on a proper construction of the relevant documents the mortgagee had the right to repossess the property in the event of the mortgagee's failure to repay the loan on demand and there was nothing in the terms of the sub-charge which transferred that right of possession to the sub-chargee in the absence of a demand for payment by the sub-chargee; and that the mere existence of a sub-charge, regardless of the true construction of the documents, did not divest the principal mortgagee of his right to possession in the event of a default by the mortgagor in repaying the mortgage loan, or suspend those rights during the currency of the sub-mortgage.





 NEGLIGENCE



Liability for independent contractor - negligent treatment of soldier's family in German hospital - Ministry of Defence not owing non-delegable duty of care to ensure non-negligent treatment



A v Ministry of Defence and another: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Tuckey and Wall): 7 May 2004

Until April 1996 Ministry of Defence personnel and their dependants who lived in Germany and who required hospital treatment were treated in British military hospitals by MoD staff. Thereafter the MoD contracted with an NHS trust to arrange for such hospital treatment to be provided in German hospitals.



Accordingly the wife of a British Army soldier serving in Germany attended a German hospital to have her baby. The German obstetrician assisting the birth was negligent and the baby, A, suffered brain damage as a result.



A sought declarations that the ministry and the trust owed him a duty of care, which could not be delegated, to ensure that he and his mother were provided with non-negligent medical treatment. The judge refused the declarations. A appealed but did not pursue the claim against the trust. Geoffrey Tattersall QC and Hugh Mercer (instructed by Simpson Millar, London) for A; David Lloyd Jones QC and Adrian Hopkins QC (instructed by the Treasury Solicitor) for the MoD.



Held, dismissing the appeal, that there was no justification for imposing a non-delegable duty on the MoD to ensure that due skill and care was exercised in the German hospitals in circumstances where the MoD was no longer in the business of treating patients in hospital in Germany and its sole role was that of arranging for such treatment to be provided by others; that there were strong policy arguments for holding that a hospital which offered treatment to a patient accepted responsibility for the care with which that treatment was administered, regardless of the status of the person employed or engaged to deliver the treatment; and that any such non-delegable duty as the MoD might have owed in relation to hospital treatment provided before April 1996 persisted only while the MoD itself continued to undertake the hospital care of its personnel and their dependents.





 PRISON



Disciplinary offence found proved against prisoner - penalty of additional days subsequently remitted but finding against prisoner remaining - finding without penalty not determination of criminal charge so not breaching prisoner's convention rights.



R (Napier) v Secretary of State for the Home Department: QBD (Mr Justice Goldring): 29 April 2004

The claimant was a serving prisoner who was charged with a disciplinary offence for assaulting a prison officer. Following a hearing the charge was found proved and a penalty of 35 additional days was imposed.



Following the decision in Ezeh and Connors v United Kingdom [2002] 35 EHRR 691, the secretary of state accepted that the adjudication amounted to the determination of a 'criminal charge' for the purposes of article 6 of the European Convention on Human Rights and that its requirements had not been met, and accordingly remitted the imposition of 35 additional days, but did not revoke the decision itself. The claimant sought judicial review.



Hugh Southey (instructed by Prisoners' Advice Service) for the claimant; Sam Grodzinksi (instructed by the Treasury Solicitor) for the secretary of state.



Held, dismissing the claim, that the key question was whether it was sufficient in order for the claimant to be awarded proper redress for the punishment of added days to be remitted or whether article 6 also required the governor's factual finding to be quashed so that it had thereafter to be regarded as inherently unreliable for all purposes connected with the management of the claimant in prison; that the decisive factor in the Ezeh case was the addition of days and that was why the boundary between administrative and criminal had been crossed and why such adjudications had to comply with article 6; but that an adjudication not involving the imposition of added days did not fall foul of the decision in the Ezeh case since, stripped of its penal consequences, the finding of guilt fell properly to be analysed as an administrative finding of fact without the stigma of a conviction; and that, since the claimant was no longer a victim, proper redress did not require the quashing of the finding. (WLR)





 TAXATION



Corporation tax - investment company - expenditure on professional advice deductible as 'expenses of management'



Camas plc v Atkinson (Inspector of Taxes): CA (Sir Andrew Morritt Vice-Chancellor, Lords Justice Chadwick and Carnwath): 6 May 2004
The company was an investment company within section 130 of the Income and Corporation Taxes Act 1988. As part of its policy of acquiring investments, in 1995 it incurred expenditure on fees for financial, legal and accountancy advice prior to making a conditional offer to acquire another company.


The offer proved unsuccessful.



The special commissioners refused the company's claim to be entitled under section 75 of the 1988 Act to deduct the costs incurred. Mr Justice Patten [2003] EWHC 1600 (Ch); (see [2003] Gazette, 18 September, 31); [2003] STC 968 upheld an appeal by the company on the grounds the costs constituted 'expenses of management' and were thus deductible. The revenue appealed.



Launcelot Henderson QC and Christopher Tidmarsh QC (instructed by the Solicitor, Inland Revenue) for the Revenue; Kevin Prosser QC and Julian Ghosh (instructed by Freshfields Bruckhaus Deringer, London) for the company.



Held, dismissing the appeal, that section 75 of the Act provided for deduction from profits for 'any sums disbursed as expenses of management'; that the applicable principles had been laid down by the House of Lords in Sun Life Assurance Society v Davidson [1958] AC 184; and that the judge had been correct to hold that the company's expenditure had been incurred on activities which were all part of the process of managerial decision-making and as such within the scope of section 75 of the 1988 Act.