Housing


Local government - homelessness - housing allocation - housing stock - local authority housing - local housing authorities - priorities - local authority's points system

R (on the application of Mei Ling Lin) v Barnet London Borough Council: CA (Civ Div) (Lords Justice Dyson, Hallett, Sir Peter Gibson): 22 February 2007

L appealed against a decision ([2006] EWHC 1041, [2006] HLR 44) that the respondent local authority's housing allocation scheme was, for the most part, lawful.



L was owed a duty under part VII of the Housing Act 1996, having been provided with accommodation by the local authority under the duty imposed by section 193(2). L and her son had been provided with 'leased homeless accommodation' owned by a private landlord who had granted a lease to a housing association. L had made several bids to the local authority for part VI accommodation, but had never succeeded because she did not have enough 'points' under the local authority's system.



Points were awarded to reflect an applicant's priority, according to certain criteria. Points were given for lack of income, time spent on the waiting list, and for applicants who had lived in the local area for the past two years. Three hundred points were awarded where an applicant was 'living in leased homeless accommodation... about to be returned to the landlord'.



L argued that the housing allocation scheme was unlawful because it gave homeless applicants no preference as against other preference groups, and thereby defeated the purpose of section 167 of the 1996 Act. Furthermore, the preference that they had as against other preference groups was unreasonable because it was insufficient to allow them to compete at all for an allocation at any time before the end of their homeless housing leases, when they would receive 300 points. The scheme was unlawful because it afforded no reasonable preference to homeless applicants as compared with non-preferred applicants. Since the scheme contained no explanation as to the operation of the 300 points given at the end of the homeless housing lease, it failed to comply with the requirement in section 167(1) to specify the procedure for allocations.



Held: the scheme accorded preference to homeless applicants in a number of ways: they were given ten points or 75 points, depending on whether there were children in the household; a further discretionary ten points were given for those owed duties under the Housing Act 1985; and 300 points were awarded when homeless housing leases came to an end. There were various other ways in which they were given points.



The test was not whether homeless applicants were excluded from allocation, it was whether they were given 'reasonable preference' compared to applicants who did not fall within section 167(2) of the 1996 Act. It was possible for a lawful scheme to give reasonable preference to a person within section 167(2), and for that person never to be allocated part VI housing.



'Preference' was not to be confused with prospects of success. The fact that homeless applicants were awarded fewer points than other persons within section 167(2) could not be a ground for challenge to an allocation scheme. There was no doubt that the local authority's scheme gave preference to homeless applicants who were owed a relevant duty under

part VII.



The local authority was entitled to take into account, in the exercise of its discretion, the fact that homeless people who

were owed a part VII duty were already housed in suitable accommodation, and their need for accommodation under part VI was less than that of other persons. The 300 points awarded when homeless housing leases came to an end did amount to a preference, despite the fact that it was contingent on the coming to an end of a current lease.



Section 167(2A) permitted a scheme to determine priorities as between people who fell within section 167(2), taking into account factors including financial resources available to the applicant, and any local connection with the area. That did not mean that such factors were otherwise irrelevant and must be excluded from a scheme.



The discretion in section 167(6) was wide enough to permit a local authority to take such factors into account when deciding the priority to be given to applicants who fell outside section 167(2). A scheme could give reasonable preference to applicants who did not fall within section 167(2), provided that such non-statutory preferences did not dominate the scheme at the expense of the statutory preference categories. The local authority's scheme did not permit non-statutory preferences to dominate the scheme at the expense of the statutory preference categories (R (on the application of A) v Lambeth LBC [2002] EWCA Civ 1084 considered).



Information as to the 'window of opportunity' for claiming the 300 points was not a mere matter of detail &150; it was central to the operation of that part of the scheme. It was an important aspect of the allocation process, which section 167(1) required to be included in the scheme. To the extent that it was not included, the scheme was invalid. Appeal allowed in part.



A Arden QC, J Manning (instructed by Pierce Glynn) for the appellant; C Baker, N Dilworth (instructed by the local authority solicitor) for the respondent.





Immigration



Human rights - appeals - asylum and immigration tribunal - removal - right to respect for private and family life - undertakings

MS (Ivory Coast) v Secretary of State for the Home Department: CA (Civ Div) (Lord Chief Justice Lord Phillips, Lords Justice Scott Baker, Thomas): 22 February 2007
S appealed against a decision of the Asylum and Immigration Tribunal (AIT) that her rights under article 8 of the European Convention on Human Rights 1950 were adequately protected by an undertaking given by the respondent secretary of state.



S had come to the UK from the Ivory Coast. In 2003, she was refused leave to enter. She appealed to an adjudicator, who allowed her appeal on article 8 grounds.



The secretary of state appealed to the AIT, asserting that he had undertaken not to remove S pending the outcome of contact proceedings that she was pursuing. The AIT dismissed the appeal on the basis of the undertaking, holding that it

could not see such 'truly exceptional' circumstances in S's private or family life as would make her eventual removal disproportionate to the legitimate purpose of immigration control.



S argued that the AIT had erred by failing to consider whether a hypothetical removal at the date of the hearing would have been contrary to her convention rights.



Held: the AIT should have decided whether S's removal on the facts as they were when it heard the appeal would have violated article 8, and thus put the secretary of state in breach of section 6 of the Human Rights Act 1998 if he removed her (R v Secretary of State for the Home Department, ex parte Ravichandran (No1) [1996] Imm AR 97, Saad v Secretary of State for the Home Department [2001] EWCA Civ 2008, [2002] ACD 59, and R (on the application of Secretary of State for the Home Department) v Immigration Appeal Tribunal [2001] EWHC Admin 1067, [2002] Imm AR 491 applied).



That question had been capable of resolution one way or the other. It had not been open to the AIT to rely on the secretary of state's undertaking, which had the effect of leaving S in limbo, and enjoying the status only of temporary admission. Nor was it appropriate for the AIT to speculate on whether there might be a violation of article 8 at some point in the future. Had the AIT decided the article 8 point in S's favour, she should have been granted discretionary leave to remain.



In the circumstances, it would be appropriate to remit the case to the AIT for it to decide in the light of the evidence then before it whether S's removal would violate article 8 and, if so, the appropriate period of discretionary leave to remain. The AIT should be given full information about the up-to-date position of any contact proceedings.



Appeal allowed.



Andrew Nicol QC, Elizabeth Dubicka (instructed by Fisher Meredith) for the appellant; Charles Bourne (instructed by the Treasury Solicitor) for the respondent.





Tax



VAT - arts and culture - consideration - exempt supplies - overheads - partial exemption - tickets - theatrical productions - direct and immediate link between input tax on production services and taxable supply of programmes - residual input tax

Revenue & Customs Commissioners v Mayflower Theatre Trust Ltd: CA (Civ Div) (Lords Justice Auld, Chadwick, Carnwath): 22 February 2007
The commissioners appealed against the decision ([2006] EWHC 706 (Ch), [2006] STC 1607) that under the partial exemption rules the respondent charitable theatre trust company (M) could have deducted a proportion of the input tax attributable to various taxable supplies.



M did not produce its own performances but bought in performances from production companies under production contracts. Following a decision of the European Court of Justice, the commissioners had accepted that M was within the cultural exemption from VAT, and, accordingly, the supply of tickets for performances should have been treated as exempt from VAT. VAT charged on those supplies had been repaid.



M claimed that it was entitled to a further repayment, representing a proportion of the input tax it could have deducted in respect of the consideration paid to production companies, under the partial exemption rules in regulation 101(2)(d) of the Value Added Tax Regulations 1995, since the input tax was not attributable exclusively to the exempt supplies of theatre tickets but also in part to taxable supplies of various types.



M argued that the production inputs bore a direct and immediate link with M's business as a whole, so that they were properly to be classed as overheads; not only with the exempt ticket sales but with one or more specific taxable outputs - namely, programme sales, production-linked merchandise and sponsorship - so that the input tax on those outputs was properly treated as residual; with a package of benefits and rights, including a ticket giving the right to see a performance, the whole package being a single composite supply taxable at the standard rate, which M supplied to sponsors and others.



Held: the overheads analysis was inapplicable to the facts of this case. The special treatment of 'overheads' or 'general costs' served a particular and limited purpose in the VAT system, for those inputs that would not otherwise be brought within the calculation. It should not be extended beyond that purpose.



This case was not about overheads but about specific attribution. There was no doubt that the production services could be attributed to specific supplies in the form of the exempt ticket supplies. The question was whether they could be attributed in addition to other taxable supplies.



There was a direct and immediate link between the production services and the programmes. The production companies were not responsible for the programmes, other than the provision of information, but the productions for which they were responsible, and which provided the subject matter of the production contracts, also provided the subject matter of the programmes. To that extent, they were as much part of the raw material used in preparing the programmes, as the paper and ink from which they were physically made. There was an objective link, sufficiently close to satisfy the relevant test (BLP Group v Customs and Excise Commissioners (C-4/94) [1995] ECR I-983 applied).



Show-specific merchandise was part of the production company's general stock, rather than being produced for the particular production, which was the subject matter of the contract, and the link was not sufficiently direct. In the circumstances, there was no direct connection between the sponsorship and a particular production or group of productions.



There was no direct and immediate link between the production costs and the taxable supplies reflected in the sponsorship agreements. The package of rights under a sponsorship agreement was not linked to any given production.



Appeal dismissed.



Melanie Hall QC, Eleni Mitrophanous (instructed by the Revenue & Customs solicitor) for the appellant; D Milne QC, Philippa Whipple (instructed by Forbes Hall) for the respondent.





Civil Procedure



Arbitration - conflict of laws - anti-suit injunctions - arbitration agreements - EC law - references to European court - jurisdiction to restrain proceedings in another member state

West Tankers Inc v Ras Riunione Adriatica Di Sicurita Spa & ors: HL (Lords Nicholls of Birkenhead, Steyn, Hoffmann, Rodger of Earlsferry, Mance): 21 February 21 February 2007
Insurers (R) appealed against a decision ([2005] EWHC 454, [2005] 2 All ER (Comm) 240) to grant an injunction, restraining them from proceeding with an action that they had commenced against the respondent ship owner (W) in Italy.



A vessel owned by W and chartered to an Italian oil refinery company (E) had collided with a jetty owned by E. The charter party was expressed to be governed by English law, and contained a clause providing for arbitration in London.



E claimed under its policies with R, which began proceedings against W in Italy to recover the amounts that it had paid to E. W later issued the instant proceedings, asserting that the dispute that was the subject of the proceedings in Italy had arisen out of the charter party, and that R were therefore bound by the agreement to refer the dispute to arbitration in London.



Accepting W's submissions, the judge had granted an injunction in its favour. The issue was whether a court of a member state could grant an injunction against a person, bound by an arbitration agreement to restrain him from commencing or prosecuting proceedings in breach of the agreement in a court of another member state that had jurisdiction to entertain the proceedings under regulation 44/2001.



Held: given that the matter was not obvious, it would be appropriate to refer the following question to the European Court of Justice (ECJ): was it consistent with regulation 44/2001 for a court of a member state to make an order to restrain a person from commencing or continuing proceedings in another member state on the ground that such proceedings were in breach of an arbitration agreement?



In case it should be of any assistance to the ECJ, the court answered the question in the affirmative. Arbitration was excluded from the scope of the regulation by article 1(2)(d).



The basic principles by which the regulation allocated jurisdiction were entirely unsuited to arbitration, in which the situs and governing law were generally chosen by the parties on grounds of neutrality, availability of legal services, and the unobtrusive effectiveness of the supervisory jurisdiction. Perhaps the most important consideration was the practical reality of arbitration as a method of resolving commercial disputes.



Those engaged in commerce chose arbitration to be outside the procedures of any national court. They often preferred the privacy, informality and absence of any prolongation of the dispute by appeal that arbitration offered. Nor was it only a matter of procedure. The choice of arbitration might affect the substantive rights of the parties, giving the arbitrators the right to act as amiables compositeurs, apply broad equitable considerations, even a lex mercatoria, which did not wholly reflect any national system of law.



The principle of autonomy of the parties should allow them such choices. Of course, arbitration could not be self-sustaining. It needed the support of the courts, and it was important for the commercial interests of the European Community that they should give such support.



The UK courts had for many years exercised the jurisdiction to restrain foreign court proceedings. That promoted legal certainty, and reduced the possibility of conflict between the arbitration award and the judgment of a national court. Furthermore, it saved a party to an arbitration agreement from having to keep a watchful eye on parallel proceedings in another jurisdiction, trying to steer a course between so much involvement as would amount to a submission to the jurisdiction, and so little as to lead to a default judgment.



The existence of the jurisdiction to restrain proceedings in breach of an arbitration agreement clearly did not deter parties to commercial agreements; on the contrary, it could be regarded as one of the advantages that the chosen seat of arbitration had to offer.



Judgment accordingly.



Stephen Males QC, Sara Masters (instructed by MFB Solicitors) for the appellants; Timothy Brenton QC, David Bailey QC (instructed by Ince & Co) for the respondents.





Negligence



Civil procedure - construction law - architects' liabilities - breach of duty of care - foreseeability - intervening events - latent defects - limitations - effect of previous event on chain of causation - rainwater drainage systems

Pearson Education Ltd v Charter Partnership Ltd: CA (Civ Div) (Lord Chief Justice Lord Phillips, Lords Justice May, Keene): 21 February 2007
Architects (C) appealed against a decision ([2005] EWHC 2021 (TCC)) that it was liable in damages to the respondent company (P) as a result of a breach of its duty to design an adequate rainwater system in a warehouse leased to P.



P had suffered substantial financial loss when books that it owned were damaged in a flood at the warehouse, which had been designed by C. It was agreed that the cause of the flooding was the inadequate drainage capacity, and that in specifying that capacity C had failed to exercise reasonable skill and care.



Eight years before the flood that caused P's loss, there had been a previous incident of damage to books stored in the warehouse while it was leased to another company (X). Following the incident, loss adjusters discovered that the capacity of the rainwater system was inadequate, but that information was not conveyed to X.



C submitted that the first flood brought C's potential liability to an end in that it was not reasonably foreseeable that any further damage would flow from the defective design once it had led to a flood, as it was reasonable to expect that this would lead to the identification of the defect. It was not fair, just or reasonable that C's duty of care should extend beyond the occurrence of the first flood, and the occurrence of the first flood broke the chain of causation; any negligent act or omission on C's part that caused the damage had occurred outside the 15-year limitation period in section 14B of the Limitation Act 1980.



Held: there was no reason, when C specified the capacity of the drainage system, for them to expect that an inspection would be carried out that would reveal any error that they might make. The design shortcoming was truly latent. It was only the first flood that set in train the inspection that identified the error (Baxall Securities Ltd v Sheard Walshaw Partnership [2002] EWCA Civ 09, [2002] CILL 1837 not applied).



It was reasonably foreseeable that, if C caused an inadequate drainage system to be installed in the warehouse, owners of property within the warehouse might suffer flooding damage to their property. The test of foreseeability in the context of duty of care did not require foresight of the precise sequence of events that resulted in damage (Hughes v Lord Advocate [1963] AC 837 applied).



P neither knew nor should have known of the first flood, so that there was no reason why it should carry out any investigation into the adequacy of the rainwater system. The first flood and the inspection to which it gave rise neither placed P outside the range of any duty of care owed by C nor broke the chain of causation between C's want of care and the damage caused.



Section 14B of the Act required the court to identify the latest date when C was responsible for a negligent act or omission to which P's damage could be attributed. The relevant negligent act or omission was the act or omission that caused an inadequate drainage system to be incorporated into the building.



The most obvious negligent act that had this effect was C specifying to the rainwater system designer and installer a design capacity that C should have known was inadequate. That event occurred within the limitation period.



Appeal dismissed.



N Dennys QC, M Chennells (instructed by Mills & Reeve) for the appellant; Mr Edelman QC (instructed by Barlow Lyde & Gilbert) for the respondent.





Media



Civil procedure - human rights - confidential information - findings of fact - freedom of expression - journalists - pressing social need - proportionality - sources of information - findings based on new evidence - effect of passage of time - Ian Brady - Ashworth Hospital

Mersey Care NHS Trust v Robin Ackroyd: CA (Civ Div) (Master of the Rolls Sir Anthony Clarke, Lords Justice Neuberger, Leveson): 21 February 2007
Hospital trust (M) appealed against a decision ([2006] EWHC 107 (QB)) that the respondent journalist (J) was not required to disclose the identity of persons who had supplied him with confidential information about one of M's patients, convicted serial killer Ian Brady.



J had acquired medical information about the patient and had supplied it to a national newspaper. M wished to identify who had disclosed the information to remove the cloud of suspicion from innocent employees, and if the source was an employee to discipline that employee to deter future disclosures.



M obtained an order that the newspaper disclose its source, but compliance with the order only revealed J's name, not the name of J's source. M then commenced proceedings against J seeking an order for disclosure of the name of his source.



The judge found that M had established a wrongdoing against M in which J had been involved; confidentiality of medical records was of the highest importance; it was not possible to say that the source had been, or was any longer an employee; there was no financial motive but rather a misguided attempt to act in the public interest; there was no evidence of any repetition of the disclosure; M's security of confidential information had been increased; the information disclosed had been limited and had not been intimate or highly sensitive; and J had a record of investigative journalism and it would not be in the public interest that his sources be discouraged from speaking to him.



On those facts, the judge concluded that at the time of his judgment there was no pressing social need that the source be identified, and that an order for disclosure was not proportionate to the pursuit of M's legitimate aim to seek redress against the source, given the vital public interest in the protection of a journalist's source. M submitted that there were no significant differences between the facts that were or ought to have been found by the judge and the facts in the proceedings against the newspaper, so it followed that the judge had reached the wrong conclusion.



Held: the balancing of considerations that were relevant to the question of whether it was necessary and proportionate to order disclosure of a journalist's source was essentially a matter for the judge on the facts. The appeal court should only interfere if the judge had erred in principle or reached a conclusion that was plainly wrong. The judge had correctly directed himself that the question was whether, at the time he made his decision, it was both necessary, in the sense of there being an overriding interest amounting to a pressing social need, and proportionate, for the court to order J to disclose the name of his source (Ashworth Security Hospital v MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033 followed). He had taken into account the key considerations on both sides of the argument, and there was no basis to interfere with the balance he struck.



The facts before the judge significantly differed from those in the action against the newspaper, partly because of new evidence and partly because of the passage of time, and he had been correct to hold that the differences were relevant factors.



Appeal dismissed.



Vincent Nelson QC, Jonathan Bellamy (instructed by Capsticks) for the appellant; Gavin Millar QC, Anthony Hudson (instructed by Thompsons) for the respondent.