Civil procedure
Agreements - discretion - economic torts - exploration - forum non conveniens - jurisdiction - justiciability - pre-action disclosure - procuring breach of contract - unlawful interference with trade - oil exploration - Alternative Investment Market - circulars - southern Sudan
Total E&P Soudan SA v (1) Philippe Henri Edmonds (2) Andrew Stuart Groves (3) White Nile Ltd: CA (Civ Div) (Lords Justice Tuckey, Jacob, Moore-Bick): 31 January 2007
E, G and W appealed against a decision ([2006] EWHC 1136 (Comm)) to grant pre-action disclosure to the respondent (T).
T claimed exploration rights in an area of southern Sudan, pursuant to an agreement with the government of Sudan. Exploration had started, but had been suspended because of civil war. When the war ended, the agreement between T and the government had been revised and updated.
The peace agreement that ended the war allowed for the establishment of an autonomous government of southern Sudan. W, a Guernsey company listed on the Alternative Investment Market (AIM), and of which E and G were directors and shareholders, had obtained from the government exploration rights in an area comprising some two-thirds of the area in which T claimed exploration rights.
T asserted that E, G and W had unlawfully interfered with T's economic interests or induced breach of contract, and obtained pre-action disclosure of 11 classes of documents. In exercising his discretion to grant pre-action disclosure, the judge took account of the fact that documents in categories one to ten had been referred to in a listing circular, and some had been made available for inspection by the public.
The appellants submitted that the judge had not had jurisdiction under rule 31.16(3)(d) of the Civil Procedure Rules because disclosure would not assist in saving costs, resolving issues, or otherwise disposing of the case; T had not put forward a case with reasonable prospects of success because the potential claim would not be justiciable in an English court; there was no evidence of the requisite mental element for the economic torts relied on; and the judge had erred in the exercise of his discretion.
Held, there were obvious gaps in what was known about the history of the appellants' dealings with the government and its predecessors, which culminated in the agreement with W. Each of documents one to ten was likely to fill those gaps, and shed light on the key issues identified by the judge.
With the documents T sought, it would be able to plead a more focused case. In what was potentially a large and complex claim, it was obviously preferable for both parties to have a properly pleaded case from the outset.
Therefore, disclosure of the documents in advance of proceedings was desirable to dispose fairly of any future proceedings within rule 31.16(3)(d)(i). The judge did have jurisdiction to make the order.
Generally, when considering an application under rule 31.16, the court did not need to and should not embark on a consideration of difficult legal issues such as justiciability and the mental element required to establish the economic torts that T relied on. Such applications were in the nature of case management decisions, requiring the judge to take a broad view of the merits of the potential claim, but not necessitating an investigation of legally complex and debatable potential defences, or grounds for stay.
The situation would be different if a respondent could show beyond argument that a claim was hopeless or non-justiciable, or if disclosure of the documents themselves raised non-justiciable issues such as sovereign confidentiality. However, that was not the instant case.
For the same reasons, the court should not consider arguments about appropriate forum on an application for
pre-action disclosure. The judge's exercise of discretion was not flawed for any of the reasons submitted by the appellants.
The judge had been entitled to take into account the fact that documents one to ten had been identified in the listing circular, that five of them had been made available for inspection by the public, and that none of them was claimed to be politically sensitive. The application was not a fishing expedition but a targeted request for specific documents that could readily be disclosed at little cost or inconvenience to the appellants. There were no grounds for interfering with the judge's exercise of discretion in relation to documents one to ten.
Different considerations applied to category 11. It was defined in broad terms. It was doubtful whether all the documents sought would be disclosable by way of standard disclosure. Those documents had not been referred to in the AIM circular. Category 11 was deleted from the order for disclosure made by the judge.
Appeal allowed in part.
Selwyn Bloch QC, Maurice Mendelson QC, Stuart Ritchie (instructed by Williams Holden Cooklin Gibbons) for the appellants; Christopher Greenwood QC, Sam Wordsworth (instructed by Freshfields Bruckhaus Deringer) for the respondent.
Conduct - costs judges - detailed assessment - jurisdiction - part 36 payments - reduction - power of costs judge to make percentage reduction of assessed costs at outset of detailed assessment
Joseph Lahey v Pirelli Tyres Ltd: CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lady Justice Arden, Lord Justice Dyson, Master Hurst): 14 February 2007
P appealed against a ruling upholding a decision of the costs judge that he did not have jurisdiction, at the outset of the detailed assessment that he was conducting, to order it to pay only a proportion of the costs that were due to the respondent (L).
L had, within the relevant time limit, accepted a part 36 payment amounting to £4,000 that P had made in an attempt to compromise his personal injury action. L's solicitors began proceedings for a detailed assessment and P served points of dispute, asserting, among other things, that L's original claim - relying on a repetitive strain injury - had been abandoned, and that it had made an offer of £5,000 before proceedings had been issued.
Before the costs judge embarked on the detailed assessment, P asked him to make an order that L should be awarded only 25% of the assessed costs. The costs judge declined to make such an order, and his decision was upheld by the judge.
P argued that rules 44.4, 44.5 and 44.14 of the Civil Procedure Rules should be construed as giving the costs judge the jurisdiction to make a percentage reduction of the assessed costs before embarking on an assessment.
Held, a costs judge did not have jurisdiction to make a percentage reduction of the assessed costs before embarking on an assessment. The effect of rules 36.13(1), 36.13(4) and 44.12(1)(b) was that, on acceptance of the part 36 payment, 'a costs order was deemed to have been made on the standard basis'. That meant that the claimant was entitled to 100% of the assessed costs. The court had the power under rule 3.1(7) to vary an existing order, but that power was only exercisable in relation to an order that the court had previously made, not in relation to an order that was deemed to be made by operation of the rules (Walker Residential Ltd v Davis [2005] EWHC 3483 (Ch) considered).
The judge hearing the case had jurisdiction under rule 44.3 to order that the receiving party should only receive a percentage of the assessed costs. However, the position of the costs judge was different from that of the judge when he exercised that jurisdiction. When carrying out a detailed assessment, the costs judge was not making an order for costs.
It was in fact unnecessary to give the costs judge the jurisdiction argued for by P, as he had the power, in an appropriate case, to disallow entire sections of a bill of costs.
Obiter, as to rule 44.14, it might be that there was some tension between what Lord Justice Longmore had said in Haji-Ioannou v Frangos [2006] EWCA Civ 1663 and what Lord Woolf had said in Burrows v Vauxhall Motors Ltd [1997] EWCA Civ 2756. To the extent that there was, the approach of Lord Justice Longmore was to be preferred. The powers given to the court by rule 44.14 included powers that were similar to those available to a judge making a wasted costs order. It was unlikely that the draftsman intended that a legal representative could be ordered to pay costs under rule 44.14, in circumstances where a wasted costs order could not be made under section 51(6) of the Supreme Court Act 1981 in respect of costs incurred as a result of 'any improper, unreasonable or negligent act or omission on the part of [the] legal representative'. The word 'unreasonable' in section 51(6) of the 1981 Act had been construed narrowly. It should be given a similarly narrow meaning in rule 44.14(1)(b). Its meaning could not vary according to whether the conduct in question was that of the party or his legal representative.
Appeal dismissed.
Judith Ayling (instructed by Cost Advocates) for the appellant; Jeremy Roussak (instructed by Hough Halton & Soal) for the respondent.
Personal Injury
Negligence &150; breach of duty of care - breach of statutory duty - employers' liabilities - industrial diseases - mesothelioma - requirement for evidence of breach of duty
Nicholas Paul Brett (personal representative of Bernard Brett, deceased) v Reading University: CA (Civ Div) (Lords Justice Laws, Sedley, Maurice Kay):14 February 2007
The personal representative of the deceased (B) appealed against a decision that the respondent university (R) was not liable for the contraction by B of mesothelioma.
Throughout his working life, B had been in employment that could have exposed him to asbestos - the inhalation of asbestos fibres being the recognised cause of the disease. R was the only employer against which claims had been made.
B had worked for R for five years as a clerk of works, and supervised the tearing down of an old library. The judge had found it proved that while in R's employ, B had worked in an environment where there was asbestos. However, he had concluded that R was not liable as it was not proved, nor could he infer, that asbestos fibres had become airborne in that environment and so were likely to have been inhaled by B.
The judge had concluded that there was no evidence to show that B had acquired the disease from exposure while working for R, as opposed to exposure in any of his earlier employment. The reason he gave was that he had no evidence that the contractors or R had in any way failed to carry out work on the library properly.
Held, the judge had erred in comparing sources of exposure, as it did not matter to one defendant's liability for contributing to the material risk that another party, whether a defendant or not, could also have contributed to it. An employer was liable if it had materially and tortiously contributed to the risk of producing the mesothelioma, without need to prove direct causation of the condition (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2002] IRLR 533 applied).
The questions to be asked, in relation to any party alleged to be liable for contributing to the risk in cases like the instant, were whether that party in fact made any such contribution; and if so, whether the party was legally at fault. The two questions sometimes overlapped - evidence that full precautions had been taken could answer both questions in a defendant's favour. Where there was only one employment in which asbestos exposure could have occurred, the inference that that was where it did occur would be almost irresistible.
In this case, the evidence was at its lowest sufficient to show that demolition was being undertaken in the library that was going to liberate asbestos dust, and that B had from time to time to inspect the work as it proceeded. It was not a defence in itself that the work was done by reputable contractors under professional supervision. There was documentary evidence that the contractors had been given instructions to take the necessary safety precautions, but no evidence either way as to whether or not they did so.
The critical question was whether the exposure to which it was likely that B was subjected put R in breach of its common law or statutory duties to him. On principle, it was for the claimant to establish the elements of his case, and one such element in a personal injury action was that the injury was caused by a breach of duty on the defendant's part.
The absence of any documentary evidence confirming compliance with the Asbestos Regulations 1969 was as consistent with compliance as non-compliance by the contractors. While the evidence was sufficient to enable the court to infer that B had come into contact with asbestos in the course of working for R, it was not sufficient to show that R had failed to take necessary steps to protect him from inhaling it.
The fact that B had developed mesothelioma could not fill the gap, as he had been in jobs that were equally capable of bringing him into contact with airborne asbestos throughout his working life. If there had been adequate evidence of breach of duty on the part of R, B's estate and dependants would have recovered agreed damages in full, notwithstanding the possible responsibility of other employers. Without such evidence, the action against R had to fail.
Appeal dismissed.
D Matovu (instructed by Bruce Lance & Co) for the appellant; J Adams (instructed by Everatt & Co) for the respondent.
Family
Adoption - children - reports - special guardians - prohibition on making of special guardianship order without report from local authority
Re S (A child) No2: CA (Civ Div) (Lords Justice Thorpe, Tuckey, Wall): 14 February 2007
The Court of Appeal considered, following its decision ([2007] EWCA Civ 54) on an appeal against appointment as a special guardian, the statutory prohibition on the making of a special guardianship order unless the court had received a report from the local authority.
D, who had been the foster mother of a child (S), had appealed against the judge's decision to appoint her as a special guardian for S rather than make the adoption order that she had sought. The judge had made the special guardianship order of her own motion under section 14A(6)(b) of the Children Act 1989, and without having received a report from the local authority under section 14A(8), as required by section 14A(11).
The appeal court had held that the judge had been entitled in all the circumstances to conclude that, on balance, S's welfare was better served by a special guardianship order, and dismissed D's appeal on the merits subject to further consideration of the jurisdictional issue under section 14A(11), on which it invited submissions.
D argued that the vast majority of the information required as to her suitability to care for S was already before the court in the reports filed in support of the adoption application; in addition, there was information before the court in evidence of D's views as to special guardianship and as to S's wishes and feelings; and, accordingly, the court had sufficient information to make an order, or alternatively should only require the local authority to file a report with the missing information by way of an addendum to the reports already filed for the adoption application.
Held, the need for a report dealing with the matters identified in section 14A(8) as a prerequisite for a special guardianship order being made was not limited to the receipt by the local authority of written notice under section 14A(7) by an individual who intended to make an application for such an order. It also plainly applied in relation to an order made under section 14A(6)(b) where the court, as in this case, considered that an order should be made, even though no application for such an order had in fact been made by any of the parties.
The judge should have exercised her powers under section 14A(9) to request the local authority to conduct the investigation, and to produce a report dealing with the matters referred to in section 14A(8). The court could not make a special guardianship order until the judge had received that report. It followed that in this case the judge did not have the power to make a special guardianship order and should not have done so.
However, on the facts of this case, the court could take a pragmatic approach to the report. In a case to which section 14A(6)(b) applied, and in which the bulk of the information required for the report under section 14A(8) was already before the court in a different form, it would be unduly burdensome for the local authority to be required to produce a fresh report, much of which would simply reproduce and duplicate the information already before the court.
The local authority should not be required to complete a new report but should be asked by the court to file a report that would fulfil the terms of section 14A(8), by providing the missing information, and by setting out the remaining information in the form of cross-references to the information already before the court in other reports.
The breach of section 14A(11) could be rectified by requesting the local authority to prepare a report under section 14A(8), providing the information not already before the court and which could be considered by the judge at a further hearing at which the special guardianship order, and any other ancillary orders, could be made.
Judgment accordingly.
Catherine Shelley (instructed by Salt Veeder) for the appellant; Yvonne Healing (instructed by Woodcock & Sons) for the first respondent; Richard Humphry (instructed by Howarths & Maitland) for the second respondent; no appearance or representation for the third respondent; Alan Cryne, solicitor-advocate (instructed by Temperley Taylor) for the fourth respondent.
Crime
Basic intent - defences - sexual assault - specific intent - voluntary intoxication - criminal intent
R v Lee Heard: CA (Crim Div) (Lord Justice Hughes, Mr Justice Henriques, Mr Justice Field): 12 February 2007
H appealed against his conviction for sexual assault, contrary to section 3 of the Sexual Offences Act 2003.
Police officers had been called to H's home where he was found drunk, in an emotional state and had cut himself. He requested to be taken to hospital for treatment where he became abusive and began to sing noisily in the waiting area. The police officers took H outside to wait, where he would be less of a disturbance to others. While outside, he began to dance suggestively towards one of the officers (P) and put his hand on his own groin. H attempted to re-enter the hospital and when discouraged became angry, punching P in the stomach. H then undid his trousers, took his penis in his hand, and rubbed it up and down on P's thigh. H was arrested.
During interviews, H stated that although he could not remember anything that had occurred, he accepted that when he was ill or intoxicated he was prone to being 'silly and start stripping'. At trial, prior to his summing-up, the judge was asked to rule whether or not the offence was one to which voluntary drunkenness could afford a defence in the sense that it might prevent H from having the necessary state of mind.
The judge ruled that the offence was one of basic intent as it had to be committed deliberately rather than accidentally in light of the use of 'intentionally' in section 3(1)(a) of the Act, and that drunkenness could not be relied on as a defence. He directed the jury that the Crown had to prove that H had touched P deliberately.
H submitted that the judge erred in his ruling since the offence was one of specific intent, as reckless touching would not suffice, and that the jury ought to have been directed to consider if his voluntary intoxication meant that he did not have the intention to touch P.
Held, it should not be supposed that every offence could be categorised simply as one of either specific or basic intent, as that might conceal the truth that different elements of it might require proof of different states of mind. The instant offence was an example and the different elements of the offence as identified in section 3(a) to (d) did not call for proof of the same state of mind. It was of limited help to try and label the offence as one particular type of intent because the state of mind that must be proved varied with the issue.
However, on the evidence available, H plainly intended to touch P with his penis. That he was drunk could have meant that he was either disinhibited and did something that he would not ordinarily have done when sober, or that he did not remember it afterwards. Neither of those matters would destroy the intentional character of his touching P.
A drunken intent was still an intent and H's behaviour, both in committing the offence and his interviews afterwards, made it clear that the touching had been deliberate. The judge had been correct in his direction to the jury on intent.
It was not open to a defendant charged with sexual assault to contend that his voluntary intoxication prevented him from intending to touch (DPP v Majewski [1977] AC 443 considered). Historically, the law of England regarded voluntary intoxication as an aggravation rather than a potential excuse, and it was unlikely that Parliament had intended to change the law by permitting reliance on voluntary intoxication where it previously had not been permitted. There was no basis for construing the Act as having altered the law.
Appeal dismissed.
T Stern (instructed by the Registrar of Criminal Appeals) for the appellant; D Perry QC (instructed by the Crown Prosecution Service) for the Crown.
Social Security
Disability living allowance - overpayment of benefits - recovery of benefits - suspension - offsetting arrears against overpayments - arrears due to suspension of payments
Brown v Secretary of State for Work & Pensions: CA (Civ Div) (Lords Justice Waller, Lawrence Collins, Lady Justice Hallett): 14 February 2007
B appealed against a decision of the social security commissioner that the Department for Work and Pensions had been entitled to offset arrears of benefit, accumulated during a period of suspension, against an overpayment of benefit.
B suffered from Asperger's Syndrome and related incontinence. While living with his parents, he had been awarded disability living allowance for a period of three years.
A year later, he began boarding at school, only spending school holidays at his parents' house. The change of circumstances was not notified to the department until B's claim was renewed two years later. Payment of the care component was suspended pending investigation, which coincided with the school summer holiday.
A decision was then made, superseding the earlier award, that B should receive disability living allowance at the same rates for the three-year period, but that no care component was to be paid for periods when he was resident at school. The result was that B had been overpaid, and the decision indicated that any allowance already paid was to be treated as paid on account of the benefit awarded by the superseding decision.
Months later, the amount of the overpayment was calculated, part of which was found to be irrecoverable. This was calculated by deducting from the amount of the overpayment the care allowance that would have been paid for B's days at his parents' home, and the amount he should have received when the allowance was suspended during the holiday.
On appeal, the commissioner determined that under regulation 5(1) of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988, the amount that should have been paid during the period of suspension was 'arrears of entitlement under the subsequent determination', being a sum paid by way of benefit pursuant to a decision that was superseded, and had been correctly offset against the award under that determination.
B argued that it had not been intended under regulation 5(1) to permit offsets against arrears due to the suspension of payments.
Held, to allow the offset of payments in arrears against irrecoverable overpayments because payments had been suspended, and which in amount would vary depending on how long it took the department to reach a determination, would lead to arbitrary results without any logic to them. The amount that should have been paid during the summer holiday was in arrears by virtue of the decision to suspend payments payable under the original decision, and by virtue of a delay in reaching a decision as to the amount of overpayment.
Therefore, the entitlement to care allowance for the summer holiday was not 'arrears of entitlement under the subsequent determination'. The superseding decision was simply determining that, during the period of overpayment, that overpayment should be being treated as paying on account that held to be due by the superseding decision (but in arrears) over that same period.
Appeal allowed.
Paul Stagg (instructed by Morrison Spowart) for the appellant; James Maurici (instructed by the Department for Work and Pensions) for the respondent.
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