Defamation Discrimination Employment Immigration Planning Practice Shipping Solicitors




Defamation



Defamation - privilege - member of New Zealand Parliament making defamatory statement in House - member's repetition of own statement outside House not protected by absolute privilege



Jennings v Buchanan: PC (Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Dame Sian Elias): 14 July 2004



A member of the Parliament of New Zealand made a defamatory statement about the claimant in the House of Representatives and subsequently told a newspaper reporter, outside the House, that he 'did not resile' from what he had said. The claimant sued the MP, pleading the words of the original statement to establish as an historical fact that they had been spoken, and relying on the extra-parliamentary statement as adopting, repeating and confirming the original statement.



The MP's application to strike out the claim was refused and the claimant was awarded damages. The MP's appeal was dismissed by the Court of Appeal of New Zealand and he appealed to the Privy Council.



Matthew Gilkison, of the New Zealand Bar (instructed by Moon Beever, London) for the MP; Michael Camp QC and Matthew McClelland, both of the New Zealand Bar (instructed by Alan Taylor & Co) for the claimant; Terence Arnold QC, Solicitor- General, New Zealand, and Tania Warburton, Associate Crown Counsel, New Zealand (instructed by Moon Beever) for the Attorney-General of New Zealand, intervening.



Held, dismissing the appeal, that neither the paramount need to protect freedom of speech in Parliament nor the right of Parliament to govern its own procedures precluded a claimant from relying on a record of what was said in the House as evidence in support of an action against an MP based on what was said outside the House; and that, accordingly, while an MP who made a defamatory statement in the House was protected from liability by absolute privilege, he could be held liable in defamation if he later affirmed the statement, without repeating it, on an occasion which was not protected by privilege. (WLR)



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Discrimination



Disability - barristers' chambers - refusal to accept application for pupillage - not giving rise to claim for discrimination



1 Pump Court Chambers v Horton: CA (Lords Justice Peter Gibson, Jonathan Parker and Mr Justice Laddie): 15 July 2004


The applicant claimed that the respondents, a set of barristers' chambers, discriminated against him, contrary to section 13 of the Disability Discrimination Act 1995, by refusing his application for admission to the chambers as a pupil barrister.



The employment tribunal held, at a preliminary hearing, that an application for pupillage was an 'application for membership' of a trade organisation and, therefore, the applicant could pursue his claim under section 13. The Employment Appeal Tribunal allowed the respondents' appeal against the decision. The applicant appealed.



Brian Napier QC and Michael Paget (instructed by Field Fisher Waterhouse, London) for the respondents; Declan O'Dempsey (instructed by the Free Representation Unit) for the applicant.



Held, dismissing the appeal (Mr Justice Laddie dissenting), that to determine whether or not a person was a member of a trade organisation necessitated a consideration of the rights and duties of that person in relation to that organisation; that it was clear from the chambers' constitution that a pupil barrister, unlike a tenant in the chambers, was not a member of the set of chambers; and that, therefore, in applying for pupillage the applicant was not applying for membership of the set. (WLR)



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Employment



Unlawful deduction from wages - tribunal having no jurisdiction if deduction for overpayment of wages or industrial action - tribunal obliged to determine existence of jurisdictional facts



Gill and others v Ford Motor Co Ltd; Wong and others v BAE Systems Operations Ltd: EAT (Mr Justice Beatson, Mr M Clancy and Mr J C Shrigley): 16 July 2004


In each case, the applicants brought claims before an employment tribunal under section 13 of the Employment Rights Act 1996, alleging unlawful deductions from wages.



The tribunal, without determining any facts, refused jurisdiction on grounds that the claims fell within section 14 (1)(a) and (5) of the 1996 Act respectively, which disapplied section 13 where the purpose of deduction was reimbursement for overpayment of wages, or where the deduction was made on account of the worker's participation in industrial action.



It held that the claims could therefore only be brought before the civil courts as breach of contract. The applicants denied taking part in industrial action or being overpaid wages, and appealed.



Anthony Ross (instructed by Rowley Ashworth, Wimbledon) and Mark Walsh (instructed by Edwards Duthie, London) for the applicants; Ian Scott (instructed by Wragge & Co, London) for Ford; Helen Barney (instructed by David Hardwick, Engineering Employers Federation Yorkshire & Humberside, Thorner) for BAE.



Held, allowing the appeal, that in order to determine jurisdiction to hear claims said to fall within section 14 of the 1996 Act, the tribunal had to make 'jurisdictional' findings of fact; that in section 14(1)(a) it was that there had been 'an overpayment of wages', and in section 14(5) it was that 'the worker has taken part in a strike or other industrial action'; that in section 14(5) it did not suffice that industrial action had taken place or that the employer considered the worker as having taken part; that investigating those jurisdictional facts did not necessarily involve investigating the lawfulness of deductions; and that, accordingly, the tribunals had erred in failing to determine the jurisdictional facts and both cases would be remitted to differently constituted tribunals.



Unfair dismissal - compen-sation for non-pecuniary loss - injury to feelings - jurisdiction to award



Dunnachie v Kingston upon Hull City Council: HL (Lord Nicholls of Bikenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earls-ferry and Lord Brown of Eaton-under-Heywood): 15 July 2004


The claimant resigned from his employment after a campaign of harassment against him.



His complaint of unfair dismissal was upheld by an employment tribunal, which awarded him compensation, under section 123(1) of the Employment Rights Act 1996, including £10,000 for the distress he had suffered by reason of the manner of his dismissal. The Employment Appeal Tribunal allowed an appeal by the employer on the ground that the employment tribunal had had no jurisdiction to award compensation for non-economic loss. The Court of Appeal, by a majority, allowed the applicant's appeal. The employer appealed.



John Bowers QC, Joanna Heal and Jeremy Lewis (instructed by Kingston upon Hull Legal Services department) for the employer; Antony White QC and Thomas Linden (instructed by Unison Employment Rights Unit) for the applicant.



Held, allowing the appeal, that 'loss' in section 123(1) of the 1996 Act did not on its true construction include non-pecuniary loss, nor could compensation for such loss be awarded as part of 'such amount as [is] just and equitable', and, accordingly, compensation for loss arising from the manner of dismissal, including humiliation, injury to feelings and distress, could not be recovered by an employee. (WLR)



Transfer of undertaking - employment continuing on transfer - 'transfer' having same meaning as in TUPE regulations



Castro v Design 36 Ltd: EAT (Judge Birtles, Mr D Smith and Ms P Tatlow): 16 July 2004


By an agreement with McCann Erickson, the applicant's previous employer, Design 36, employed the applicant in return for subcontracted work from McCann Erickson. The applicant, having been dismissed, brought a claim against Design 36 for unfair dismissal. The tribunal determined that the applicant had the necessary continuity of employment of one year to bring a claim of unfair dismissal, because in section 218(2) of the Employment Rights Act 1996 (which provided that on transfer of an undertaking, the employee's period of employment with the transferrer continued with the transferee), 'transfer' had the same meaning as in the Transfer of Undertakings (Protection of Employment) Regulations (SI 1981 No 1794) (TUPE); that there had been a transfer from McCann Erickson within the meaning of section 218(2) and TUPE; and that regulation 5(1) of TUPE itself, which provided that the transferred contract had effect as if originally made between employee and transferee, preserved the continuity of employment. The respondent appealed.



Paul Daniels (instructed by Russell Jones & Walker, London) for the applicant; Donald Broatch (instructed by Seymours, London) for the respondent.



Held, dismissing the appeal, that 'transfer' in section 218(2) of the 1996 Act had the same meaning as in TUPE; that both those provisions and Council Directive 77/187/EEC (the Acquired Rights Directive) were part of a single scheme for the protection of employees' rights, to be interpreted consistently, and with an identical interpretation of 'transfer'; that there was a transfer of an undertaking satisfying section 218(2) of the 1996 Act; that regulation 5(1) of TUPE alone was capable of preserving continuity following the transfer under TUPE; and that accordingly the tribunal's decision was correct.



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Immigration



Claimant failing on asylum claim bringing second human rights claim - claimant challenging Immigration Appeal Tribunal guidance on how to deal with claim where previous determination disposed of asylum claim - guidance legitimate and correct



Djebbar v Secretary of State for the Home Department: CA (Lords Justice Judge, Tuckey and Kay): 30 June 2004


The claimant made a claim for asylum which was dismissed on appeal (the first adjudication). He made a further application on human rights grounds which was rejected. His appeal was upheld (the second adjudication). The secretary of state then appealed to the appeal tribunal that allowed the appeal. The claimant appealed.



Rabinder Singh QC and Eric Fripp (instructed by Wilson & Co, London) for the claimant; Andrew Hunter (instructed by the Treasury Solicitor) for the secretary of state.



Held, dismissing the appeal, that the Immigration Appeal Tribunal, specialising in the field, was entitled to provide guidance to the entire body of specialist adjudicators about how they should deal with the fact of an earlier unsuccessful application when deciding the later one; that such guidance was essential to ensure consistency of approach among special adjudicators; that the guidelines remedied an immediate and pressing difficulty, with direct application to, but not exclusively concerned with, the many cases in which after unsuccessfully exhausting all the possible legal channels, asylum seekers remained in the UK, and put forward a case on human rights grounds after October 2000; and that, accordingly, the guidance for adjudicators in appeals based solely on human rights grounds, where a previous determination had dealt with the appellant's asylum claim, was legitimate and correct.



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Landlord and tenant



Application for new tenancy - misdescription of defendant landlord - jurisdiction to grant permission to substitute party after expiry of relevant limitation period



Parsons and another v George and another: CA (Sir Andrew Morritt, Vice-Chancellor, Lords Justice Clarke and Dyson): 13 July 2004


The claimants made a claim for a new tenancy under the Landlord and Tenant Act 1954. Section 29 (3) provided that no application under section 24(1) to renew the tenancy would be entertained unless it was made not less than two months nor more than four months after the giving of the landlord's notice.



The defendants, the executors of the lessor of the premises, objected to a new tenancy on the grounds that they were not the 'competent landlord' and asked for the action to be discontinued, since it had been issued against the wrong party.



The claimants applied for an order to substitute the competent landlord for the defendants who had been incorrectly named as the defendants when proceedings were issued. The judge held that he had no jurisdiction to allow the substitution once the time for issuing proceedings had expired under rule 19.2 of the Civil Procedure Rules (CPR) and that CPR rule 19.5 did not apply to the 1954 Act. The claimants appealed.



Michelle Stevens-Hoard (instructed by Cartwright Cunningham Haselgrove & Co, London) for the claimants; Katherine McQuail (instructed by Birkett Long, Chelmsford) for the defendants.



Held, allowing the appeal, that the application did not fall within CPR rule 19.2; that CPR rule 19.5(1)(c) was to be given a wide interpretation and referred to any enactment that allowed or that did not prohibit a change of parties after the end of a relevant limitation period; that it was legitimate use of language in the context of section 29(3), which contemplated applications for new tenancies, to say that something was allowed merely because it was not prohibited; and that in all the circumstances the appeal would be allowed. (WLR)



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Planning



Public nuisance - local authority carrying out works under statutory powers - site hoarding impeding passage to shops adjoining highway - owner of shops entitled to compensation for injurious affection



Ocean Leisure Ltd v Westminster City Council: CA (Lord Justice Potter, Lord Justice Rix and Lord Justice Carnwath): 21 July 2004


The council constructed two footbridges across the Thames on either side of a railway bridge pursuant to article 3 of the River Thames (Hungerford Footbridge) Order 1999.



While carrying out the work, the council constructed a site hoarding in front of the claimant's shop, impeding the passage from the road to the shop and affecting its business. The hoarding was in place between August 2001 and the end of September 2002. The claimant brought proceedings in the Land Tribunal, claiming compensation pursuant to section 10 of the Compulsory Purchase Act 1965 for injuriously affecting the interest of its land.



The council contended that it was not liable for works authorised by statutory powers; on a preliminary point, the tribunal held that the claimant was entitled to bring the claim under section 10. The council appealed.



Paul Stinchcombe (instructed by CMS Cameron McKenna, London) for the council; Barry Denyer-Green (instructed by Charles Russell, London) for Ocean Leisure.



Held, dismissing the appeal, that the powers given to the council under the 1999 Order to carry on roadworks did not authorise it to cause a public nuisance by erection of the site hoarding for a long period of time; that the owner of the premises contiguous to or sufficiently proximate to the highway that were injuriously affected by the works, even if they were authorised by statutory powers, was entitled to take advantage of the statute to claim compensation as provided by section 10 of the 1965 Act.



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Practice



Challenge to jurisdiction and application for summary judgment - power to allow summary judgment application to be made before determination of challenge to jurisdiction - to be exercised only in rare cases



Speed Investments Ltd and another v Formula One Holdings Ltd and others: ChD (Mr Justice Lewison): 19 July 2004


Three of the defendants applied under part 11 of the Civil Procedure Rules (CPR), challenging the jurisdiction of the English court over proceedings commenced against them by the claimants.



Soon after those challenges were made, the claimants issued an application under CPR part 24 for summary judgment. The preliminary issue arose whether the summary judgment application should be determined at the same time as the challenges to jurisdiction.



Elizabeth Jones QC and Nicholas Harrison (instructed by White & Case, London) for the claimants; Murray Rosen QC and Nick Parfitt (instructed by Lovells, London) for the second, third and fourth defendants; the first defendant did not appear and was not represented.



Held, that although the court had the power under the CPR to permit an application for summary judgment to be made before an outstanding challenge to the jurisdiction had been determined, it would be a rare case in which the court exercised that power; and that, in the circumstances, the power would not be exercised and the challenges to jurisdiction should be determined before the summary judgment application.



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Shipping



Charterparty - demurrage - pipeline malfunction 'breakdown of machinery or equipment'



Portolana Compania Naviera Ltd v Vitol SA Inc and another: CA (Lords Justice Ward, Clarke and Laws): 9 July 2004


Clause 8 of the standard form Asbatankvoy charterparty provided that payment for demurrage be reduced by one half if delays at ports in discharging cargo were caused by a 'breakdown of machinery or equipment in or about the plant of the charterer, supplier, shipper or consignee'.



Delay occurred at Dakar in discharging oil from the tanker Alfrapearl, chartered by the defendants, because a defect in the flange of the oil pipeline prevented its proper operation. Mr Justice Tomlinson [2003] EWHC 1904 (Comm); [2004] 1 All ER (Comm) 269; [2003] 2 Lloyd's Rep 671 upheld a claim by the shipowners for the disputed balance of demurrage, rejecting the charterers' defence which relied on clause 8. The charterers appealed.



Thomas Macey-Dare (instructed by Stephenson Harwood, London) for the charterers; Nevil Phillips (instructed by Mills & Co, London) for the shipowners.



Held, allowing the appeal, that 'breakdown of equipment in or about the plant of the consignee' was to be construed not in a vacuum but rather by reference to the particular facts and the charterparty; that the pipeline was part of the 'equipment' used to transport the oil from the sealine berth to the shore and its breakdown could be said to occur if by reason of some malfunction it ceased to operate as such; and that, accordingly, the delay owing to a defect in the flange of the pipeline preventing its proper operation as a discharge pipe was caused by a 'breakdown of equipment' within the meaning of clause 8.



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Solicitors



Suspension - Solicitors Disciplinary Tribunal's power to impose conditions following period of suspension - tribunal's duty to consider imposing conditions or restrictions itself rather than recommending conditions to Law Society



Camacho v Law Society: QBD (Lord Justice Thomas, Mr Justice Silber and Mr Justice Goldring): 12 July 2004


The Solicitors Disciplinary Tribunal (SDT) ordered that a solicitor be suspended indefinitely. On the solicitor's appeal, the Divisional Court substituted a finite period of suspension and identified five conditions that it considered should be imposed on the solicitor in relation to his practice.



In view of uncertainty whether the tribunal had power to impose such conditions, the court followed the tribunal's practice and proposed that the Law Society should agree to impose those conditions on the solicitor. The Law Society made further representations in relation to that judgment and the order imposed.



Jeremy Hyam (instructed by Shah Solicitors, Harrow) for the solicitor; Geoffrey Williams QC, solicitor and George Marriott, solicitor (instructed by Gorvins Solicitors, Milton Keynes) for the Law Society; Andrew Hopper QC, solicitor (instructed by the SDT) for the tribunal.



Held, allowing the appeal, that, if a tribunal considered that a period of complete suspension followed by a period of restricted practice was the appropriate sanction to protect the public, then, since it was accepted that the tribunal had power to impose such conditions or restrictions, it was the tribunal which should impose that penalty and not leave it to others; that in each case the tribunal should address the question of whether the public interest was best served by it imposing a condition which it could be certain would be put into effect or leaving the matter entirely to the Law Society; and that, unless there were exceptional reasons, the tribunal itself should impose the conditions it considered appropriate. (WLR)



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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