Arbitration Criminal Ecclesiatical Education Employment Landlord and tenant Lawyers Licensing Pensions


ARBITRATION



Arbitrator's award - partial remittal of award - parts not remitted remaining valid



Carter (trading as Michael Carter Partnership) v Harold Simpson Associates (Architects) Ltd: PC (Lord Hoffman, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry and Dame Sian Elias): 14 June 2004



A dispute between two firms of architects who had formed a joint venture partnership in Jamaica was submitted to and adjudicated on by an arbitrator.



In proceedings subsequently brought by the claimant to enforce the arbitrator's award, the judge remitted the award to the arbitrator for him to amend it to place it in a form capable of being enforced. The defendant contended that the remittal deprived the award of legal effect and that it could not therefore form the basis of an action by the claimant for payment of sums due on the award. The Court of Appeal of Jamaica dismissed the defendant's appeal and the defendant appealed to the Privy Council.



Raphael Codlin and Ripton Macpherson, both of the Jamaican Bar (instructed by Simons Muirhead & Burton, London) for the appellant; Carol Davis, of the Jamaican Bar (instructed by Saunders & Co, London) for the respondent.



Held, dismissing the appeal, that the remittal of an arbitration award did not deprive it of legal effect; that the powers and duties of the arbitrator could not exceed what was necessary to give effect to the order for remittal; that the award continued to operate so as to make the arbitrator functus officio, unable to alter his award, on those matters which were not remitted; and that, since the remittal was expressly concerned with the form of the award, it followed that the substance of the award remained valid and could properly form the subject matter of an action to enforce it.



 CRIMINAL



Possession of indecent photograph of child - defendant possessing adult pornographic videos but denying awareness of images of children thereon - statutory defence available despite admission of awareness of indecent nature of videos



R v Collier: CA (Lord Justice Hooper, Mr Justice Keith and Judge Andrew Patience QC): 11 June 2004



Police searched the defendant's home and found seven video tapes containing homosexual adult pornography, followed by trailers advertising films involving young boys engaging in sexually explicit acts while naked, and two CD ROMs which contained numerous homosexual adult pornographic pictures with four images which showed children in sexually explicit poses.



He was charged with offences of possession of an indecent photograph of a child, contrary to section 160(1) of the Criminal Justice Act 1988. He pleaded guilty to the offences after the trial judge ruled that the defence in section 160(2)(b) (that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to be indecent) was not available to him because he had admitted that he knew the videos and CD ROMs contained indecent images. He appealed against the conviction on the grounds that the judge's ruling was wrong.



Silas Reid (assigned by Registrar of Criminal Appeals) for the appellant; Christopher Amor (instructed by the Crown Prosecution Service, Stratford East) for the Crown.



Held, allowing the appeal, that the defendant was entitled to rely on the defence if he could show that, although he knew or had cause to suspect that the photographs in his possession were indecent, he had not seen any of the images of children in the trailers following the video films or the four relevant images on the CD ROMs and did not know or have cause to suspect that they included any indecent photographs of a child; and that, accordingly, the judge's ruling was wrong.



 ECCLESIASTICAL



Churchyard - memorial monument to former churchwarden - not to be permitted in churchyard when remains not there interred



In re St Peter's, Limpsfield: Southwark Consistory Court (Deputy Chancellor Philip Petchey): 8 June 2004



The widow and children of a deceased parishioner applied for a faculty authorising the erection of a monument in the churchyard to commemorate the deceased who had been a churchwarden and treasurer of the parochial church council, but whose remains had not been interred in the churchyard.



There was no legal representation. Held, refusing the faculty, that war memorials and memorials to victims of a natural disaster or other similar events were in a category of their own and were appropriately situated in churchyards since they were public memorials to community events; but that the purpose of a churchyard was first and foremost for the interment of human remains; that 'memorialisation' was a consequence of remains being buried in a churchyard, the primary purpose being to enable relatives and others to know where the remains of the deceased were interred; that more general memorialisation such as recording the deceased's achievements and standing in the community, or contributing an artefact of intrinsic value to enhance a precious space were secondary; that there was a shortage of burial space both in this churchyard and nationally and if the memorial in this case were permitted it would use up a space in consecrated ground which might otherwise be used for the interment of the remains of someone else; that it could also create a precedent which would make it difficult to refuse other similar applications or applications from those who wished to inter the ashes of a relative in the churchyard with a full-sized headstone; and that to grant the faculty could in principle result in a consecrated churchyard having a significant number of spaces not taken up with burials at all. (WLR)



 EDUCATION



Pupil refusing to wear school uniform for religious reasons - decision not to allow her into school wearing non-uniform clothing - not unlawful exclusion or breach of convention rights



R (Shabina Begum) v Head and Governors of Denbigh High School: QBD (Mr Justice Bennett): 15 June 2004



The claimant, a Muslim girl who had for two years attended school wearing the shalwar kameez, which was the dress prescribed by the school's uniform policy for female Muslim pupils who did not wish to wear traditional uniform, claimed that her current religious beliefs required her to wear the jilbab, which did not comply with the uniform policy.



She sought judicial review of the defendants' decision not to allow her to return to school while wearing the jilbab, declarations that she had been constructively and unlawfully excluded contrary to sections 64 to 68 of the School Standards and Framework Act 1998 and that she had been denied access to education and the right to manifest her religion in breach of article 2 of protocol 1 and article 9 of the European Convention on Human Rights respectively, and damages.



Yvonne Spencer, solicitor, (instructed by Children's Legal Centre, Colchester) for the claimant; Simon Birks (instructed by Head of Legal Services, Luton Borough Council) for the defendants.



Held, dismissing the claim, that there was no exclusion, constructive or otherwise, where a pupil with full knowledge of the school uniform policy chose not to wear the appropriate school uniform knowing that the school would be unlikely to allow her to attend; that there was no breach under article 9(1) since the reason for non-admission was her refusal to abide by the uniform policy rather than her religious beliefs as such; that there was no breach of article 9(2) where it was clear that the school uniform policy and its enforcement had the legitimate aim of the proper running of a multi-cultural, multi-faith secular school and was proportionate in that the uniform had been specifically devised with the advice of the Muslim community; and that there was no breach of article 2 of protocol 1 where there was an option of agreeing to wear the shalwar kameez or of transferring to another school.



 EMPLOYMENT



Health and safety - employer's liability - mechanic working on van - wheel bolt shearing off causing mechanic to fall - van not work equipment



Hammond v Commissioner for Police for the Metropolis and another: CA (Lord Justice Brooke, Lord Justice May and Mr Justice Eady): 11 June 2004



The claimant was employed by the first defendant as a mechanic to maintain vehicles belonging to the police force. In 1998, when the claimant was doing maintenance work to a police van, he fell backwards when a wheel bolt sheared off as he was attempting to undo it.



In a claim for damages for breach of statutory duty against the first defendant as the employer and the Metropolitan Police Authority as the owner of the vehicle, the judge held that the van was 'work equipment' within the meaning of the Provision and Use of Work Equipment Regulations 1992 implementing Council Directives 89/39/EEC and 89/65/EEC for the purpose of carrying out repair and maintenance work which imposed strict liability on the employer for failing to provide safe work equipment. The defendants appealed.



Jason Evans-Tovey (instructed by Ponsford & Devenish, London) for the defendants; Simon Carr (instructed by Lawfords, London) for the claimant.



Held, allowing the appeal, that the regulations were concerned with what might loosely be described as the tools of the trade provided by an employer to an employee to enable the employee to carry out his work, and they were not intended to give a very wide meaning to the phrase as concluded by the county court; and that although such a vehicle might be work equipment for a police officer using it for the purposes of his duty, it would not be so for a mechanic who was carrying out repair work to it.



 LANDLORD AND TENANT



Leasehold covenant prohibiting alterations to tenant's building without landlords' consent - landlord consenting on condition that use of altered building restricted - landlord entitled to rely on perceived damage to his trading interests in adjoining property as ground for refusing consent



Sargeant and another v Macepark (Whittlebury) Ltd: ChD (Mr Justice Lewison): 8 June 2004



The landlords, who were in the hospitality industry, leased neighbouring land to the tenants for the purposes of constructing and running a hotel.



The lease contained a covenant that the tenant would not make any alterations to the hotel without the landlords' consent, such consent not to be unreasonably withheld. The landlords granted the tenant a licence to construct an extension to the hotel, subject to the condition that the lease be varied to incorporate a clause requiring that public rooms in the proposed extension be only used for functions and activities directly related to management training conferences.



The preliminary issue arose of whether it was reasonable for the landlords to impose the condition, a question which arose at common law and under section 19(2) of the Landlord and Tenant Act 1927, which provided that the proviso that consent be not unreasonably withheld did not preclude the right to require, as a condition of consent, the payment of a sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to the landlord.



John Male QC (instructed by Beachcroft Wansbroughs, London) for the landlords; Nicholas Dowding QC (instructed by Ashurst Morris Crisp, London) for the tenant.



Held, that a landlord was, in principle, entitled to rely on perceived damage to his trading interests in adjoining or neighbouring property as a ground for refusing consent to an intended alteration to the property on the leased land or change of use by the tenant; that consent could not be refused on the ground only of pecuniary damage to the landlord's interest in the leased property or a neighbouring property belonging to him, his remedy in those circumstances being to ask for compensation as a condition of giving consent; and that the clause proposed by the landlords went further than was reasonable to protect their legitimate concerns and the lease would not, therefore, be varied to incorporate it.



Death of statutory tenant - entitlement of 'spouse' to succeed - 'spouse' to be read as including same-sex partner



Ghaidan v Godin-Mendoza: HL (Lord Nicholls of Birkenhead, Lord Steyn, Lord Millett, Lord Rodger of Earlsferry and Baroness Hale of Richmond): 21 June 2004



The defendant had lived in a stable and permanent homosexual relationship with the protected tenant of a flat of which the claimant was the freehold owner.



On the tenant's death the claimant brought possession proceedings. The judge held that the defendant did not succeed to the tenancy of the flat as the surviving spouse of the original tenant within paragraph 2 of schedule 1 to the Rent Act 1977, although he became entitled to an assured tenancy by succession as a member of the original tenant's family within paragraph 3(1) of schedule 1, which was less advantageous.



The defendant appealed. The Court of Appeal [2002] EWCA Civ 1533; [2003] Ch 380, held that paragraph 2 was to be read so that 'spouse' included a same-sex partner. The claimant appealed.



Monica Carss-Frisk QC and Jonathan Small (instructed by Hugh Cartwright & Amin, London) for the claimant; Rabinder Singh QC and Paul Staddon (instructed by Oliver Fisher, London) for the defendant; Philip Sales (instructed by the Treasury Solicitor) for the first secretary of state, intervening; Stonewall Lobby Group, intervening, made written submissions.



Held, dismissing the appeal, that since paragraph 2 on its ordinary meaning treated homosexuals less favourably than heterosexuals without any rational or fair ground for such distinction, the defendant's rights under articles 8 and 14 of the European Convention on Human Rights were infringed; that section 3 of the Human Rights Act 1998 required that legislation be given a convention-compliant meaning wherever possible, subject only to the modified meaning remaining consistent with the fundamental features of the legislative scheme; and that (Lord Millett dissenting) it was possible to read paragraph 2 as extending to same-sex partners so as to eliminate its discriminatory effect on such persons without contradicting any cardinal principle of the 1977 Act, and so the defendant was entitled to succeed to the statutory tenancy. (WLR)



See Human rights update,





LAWYERS



Conflict of interest - solicitors retained by consortium in relation to takeover bid of claimant - solicitors also acting for claimant but not in relation to takeover - double employment rule applying



Marks and Spencer plc v Freshfields Bruckhaus Deringer: ChD (Mr Justice Lawrence Collins): 2 June 2004



The defendant, a firm of solicitors, was retained by a consortium in relation to the proposed acquisition of the claimant company. The claimant also retained the defendant to advise it in relation to various legal matters, although not in relation to the consortium's proposed bid. The claimant sought an injunction to prevent the defendant from acting for the consortium.



Kenneth Maclean QC and James Goldsmith (instructed by Slaughter & May, London) for the claimant; Michael Brindle QC and Michael Levy (instructed by Freshfields Bruckhaus Deringer, London) for the defendant.



Held, allowing the claim, that although the authorities were concerned with solicitors acting for two clients with conflicting interests in the same transaction, the double employment rule was not restricted to that situation; that although there had to be some reasonable relationship between the two matters, they did not have to be the same; that, in the circumstances, there was a real risk of conflict; and that, accordingly, it was appropriate to grant the injunction sought.





 LICENSING



Street trading - defendant offering single vehicle for sale in street - offering single item for sale capable of amounting to trading



Haringey London Borough Council v Michniewicz: QBD (Lord Justice Rose and Mr Justice Holland): 14 June 2004



The defendant, who did not hold a street trading licence, was alleged to be the owner of a car parked in the street showing a notice that it was for sale with the price and a telephone number.



The justices dismissed an information preferred by the council alleging unlicensed street trading, holding that no offence had been committed by the defendant within section 38 of the London Authorities Act 1994, on the ground that the offer of one car for sale did not amount to trading. The council appealed by way of case stated.



Stephen Walsh (instructed by Corporate Legal Services, Haringey London Borough Council) for the council; the defendant in person.



Held, allowing the appeal, that section 38 of the 1994 Act was intended to include a situation where just one vehicle was offered for sale; and that the case would accordingly be remitted to the justices with a direction to continue the hearing.



 PENSIONS



Secretary of state's duty to take reasonable steps to inform former armed service personnel of war pensions scheme - breach of duty causing former serviceman to delay claiming war disablement pension - pension to be backdated to 65th birthday



Secretary of State for Defence v Reid: QBD (Mr Justice Newman): 28 May 2004



The pensioner served in the armed forces from 1942 until 1955. He suffered injuries during his service but was not medically discharged. On his claim for a war disablement pension an award was made and backdated to the date of the claim.



The pensioner appealed to the Pensions Appeal Tribunal, for the award to be backdated to his 65th birthday on the basis that he would have made a claim earlier than he actually did but for an omission of the secretary of state which had wrongly caused him to delay the claim, and that the omission was the dominant and continuing cause of the delay up to the moment the claim was made. The tribunal allowed the appeal. The secretary of state appealed.



Steven Kovats (instructed by the Treasury Solicitor) for the secretary of state; Rabinder Singh QC and Conor Gearty (instructed by Linder-Myers, Manchester) for the pensioner.



Held, dismissing the appeal, that the words of paragraph 10 of schedule 3 to the Naval, Military and Air Forces Etc (Disablement and Death) Services Pensions Order 1983 (SI 1983/883), which provided for the backdating of a claim where an act or omission of the secretary of state occurred to delay a claim, were wide enough to extend to a circumstance where no claim had been made and were apt and broad enough to extend to a failure to take reasonable steps to inform someone who had not communicated in connection with making a claim; that the secretary of state owed a duty to take reasonable steps to inform former armed service personnel of the existence of the war pensions scheme and that duty was reasonably incidental to his overall responsibility for the due and proper administration of the scheme; and that, on the evidence, the tribunal was entitled to conclude there had been a breach of that duty.



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