Children Conflict Of Laws Costs Employment Land Landlord And Tennant Legal Aid Police Practice Trade

Children


Child abduction – removal of child – mother claiming to have father’s consent in writing – report of handwriting expert inconclusive – no discretion as to return of child.


In re P (A Child) (Abduction: Consent): CA (Lords Justice Ward, Scott Baker and Mr Justice Lawrence Collins): 28 July 2004


The mother brought her child, in respect of whom a court in New York had ordered that neither the father nor the mother was to remove the child without the prior written consent of the other, to England and claimed that the father had given his written consent. The father denied signing a document giving consent and, having obtained an order for sole legal and physical custody in New York, brought proceedings in London for his child’s return under article 12 of the Hague Convention on Child Abduction. With reports from handwriting experts on each side, the judge decided that the father had consented and refused the application. The father appealed.


Andrew McFarlane QC and James Roberts (instructed by Lyons Davidson, Bristol) for the father; Michael Nicholls (instructed by Hartnells, Exeter) for the mother.


Held, allowing the appeal, that consent to the removal of a child by the person seeking the child’s return did not fall to be considered for the purpose of establishing the wrongfulness of the removal or a breach of rights of custody pursuant to article 3, but only for the purpose of invoking an exercise of the court’s discretion pursuant to article 13; and that, accordingly, where the court was satisfied that the child’s father had rights of custody, that the mother’s removal was wrongful and in breach of those rights and that she had failed to establish his consent to that removal, pursuant to article 12 the court had to order the immediate return of the child. (WLR)


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Conflict Of Laws


Prisoners’ rights – release on licence – prisoner sentenced for offences committed before statutory changes introducing release on licence – liability to licence conditions not amounting to imposition of ‘heavier penalty’


R (Uttley) v Secretary of State for the Home Department: HL (Lord Steyn, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell): 30 July 2004


The applicant was sentenced to 12 years’ imprisonment in 1995 for three offences of rape and several other serious sexual offences, committed before 1983.


His date of conviction was three years after the coming into force of provisions of the Criminal Justice Act 1991, which imposed conditions of licence when long-term prisoners were released on remission as soon as they had served two-thirds of their sentence. He sought judicial review by way of declarations that the imposition of licence conditions when he was released in 2003 constituted a heavier penalty than a sentence without such conditions of release which would have applied if he had been convicted before the 1991 Act took effect, and as such was a breach of his rights under article 7(1) of the European Convention on Human Rights as scheduled to the Human Rights Act 1998. The judge dismissed the application, but the Court of Appeal reversed that decision and granted the declaration. The secretary of state appealed.


David Pannick QC and Jenni Richards (instructed by the Treasury Solicitor) for the secretary of state; Anthony Scrivener QC and Philippa Kauffmann (instructed by Bhatt Murphy, London) for the applicant.


Held, allowing the appeal, that the penalty ‘applicable’ within the meaning of article 7(1) was the penalty which the legislature prescribed at the time the offence was committed and article 7(1) would only be infringed if the sentence imposed for an offence exceeded the limits fixed by law for the offence at the time it was committed; that in 1983, the maximum sentence for rape, the most serious of the offences committed by the applicant, was life imprisonment, and therefore, the composite sentence of 12 years imposed on him in 1995 was well within the limits of the sentence ‘applicable’ at the time the offences were committed; that the introduction of release on licence by the 1991 Act did not render the sentence more severe than it would have been in 1983 and did not amount to an additional penalty; that therefore, release on licence did not constitute a ‘heavier penalty’; and that, accordingly, there was no breach of the applicant’s rights under article 7(1). (WLR)


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Costs


Defendant making part 36 payment into court – award of damages exceeding part 36 payment only by virtue of interest accruing after date of payment – claimant liable for defendant’s costs after date of payment



Blackham v Entrepose UK: CA (Lords Justice Brooke, Buxton and Carnwath): 27 July 2004


The claimant was awarded damages against his employer for injury sustained in the course of his employment. The defendant made a part 36 payment into court of £40,000, but the claimant did not accept the offer before the time limited for acceptance without leave of the court on 3 December 2001.


The judge at trial awarded the claimant a total sum, including interest, of £40,854. But for the accumulation of interest from 3 December 2001 until the date of the trial the award would have been only some £39,000 and would not have exceeded the payment in. The judge, comparing £40,000 with £40,854, held that the award of damages had bettered the payment in within rule 36.20(1)(b) of the Civil Procedure Rules 1998 and, consequently, the defendant was not entitled to any deduction from the claimant’s costs which it had to pay. The defendant appealed.


Alasdair Brough (instructed by Lyons Davidson, Bristol) for the defendant; Roger Mallalieu (instructed by James Smith Partnership, Skegness) for the claimant.


Held, allowing the appeal, that the judge should have compared the £40,000 with £39,000; and that the claimant should therefore pay the defendant’s costs after 3 December 2001.


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Employment


Contract of employment – failure to deduct tax and national insurance – performance of contract not illegal so as to preclude claim for unfair dismissal


Wheeler v Quality Deep Ltd (trading as Thai Royale Restaurant): CA (Lords Justice Ward, Wall and Hooper): 30 July 2004


The employee was employed by the defendant as a cook. Her knowledge of English was poor. She was paid £220 per week plus tips. Her employer failed to deduct tax or national insurance and only occasionally provided her with pay slips which were inaccurate. She claimed she was unfairly dismissed. The employer went into liquidation and took no part in the action. The Employment Appeal Tribunal upheld a decision by an employment tribunal refusing to allow enforcement of an illegal contract. The employee appealed.

John Horan and Hannah Godfrey, acting pro bono, (instructed by Aldridge Parker, London) for the employee; Dinah Rose (instructed by the Treasury Solicitor) as advocate to the court.


Held, allowing the appeal, that it was incumbent on the employment tribunal to distinguish between an illegal contract and the illegal performance of a legal contract; that the applicable principles were laid down in Hall v Woolston Hall Leisure Centre Ltd [2001] 1 WLR 225; and that, in the unusual circumstances of the case, the employer’s failures did not render the performance of the contract illegal and thus the employee was entitled to claim her dismissal was unfair.


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Land


Mistake in transfer of land leaving property without vehicular access – right of way over neighbouring property used in ignorance of mistake – alternative access obstructed by building – doctrine of implied reservation of easement of necessity applying


Sweet and another v Sommer and another: ChD (Mr Justice Hart): 25 June 2004


As a result of an error contained in a transfer that occurred in 1988, a property known as ‘Forge Meadow’ was purchased by the claimants without any vehicular right of way from the property to the road. The claimants had used a purported right of way over property known as ‘Old Forge Yard’ belonging to a neighbour, the first defendant, for a number of years until the error came to light. The claimants could only access Forge Meadow from the road, and vice versa, either by crossing the first defendant’s land or by demolishing a workshop.


Jeffrey Littman (instructed by Charles Blacklock & Co, Monmouth) for the claimants; John Sharples (instructed by Darwin Gray, Cardiff) for the defendants.


Held, that where access to a property was only available either over the property granted or by the destruction of a physical barrier, the continued existence of which was obviously contemplated by the parties, it was consistent with the doctrine of implied reservation of an easement of necessity to say that a way over the property granted was impliedly reserved as a matter of necessity; that since the effect of the 1988 transfer was to leave the Forge Meadow property landlocked for the purposes of the doctrine, unless the workshop was demolished, a vehicular right of way over the Old Forge Yard was impliedly reserved in favour of Forge Meadow.


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Landlord And Tennant


Leasehold enfranchisement – company headlessee of house comprising flats sublet to tenants on short-term tenancies – company entitled to enfranchise since also qualifying tenant of each flat


Cadogan and another v Search Guarantees plc: CA (Lord Justice Jonathan Parker and Mr Justice Laddie): 27 July 2004


The defendant, the headlessee of a house comprising flats which it had sublet on short-term tenancies, applied for enfranchisement under section 1 of the Leasehold Reform Act 1967. The claimants, in whom the freehold reversion was vested, sought a declaration that the defendant, being a company and, therefore, incapable of satisfying the residence requirement of section 1(1ZB) of the 1967 Act (as inserted by section 138(2) of the Commonhold and Leasehold Reform Act 2002), was not entitled to enfranchise. The parties agreed that the headlessee was also the ‘qualifying tenant’ of each flat for the purposes of section 1(1ZB). The judge in the county court made the declaration sought. The defendant appealed.


Jonathan Gaunt QC (instructed by Lawrence Jones, London) for the defendant; Anthony Radevsky (instructed by Pemberton Greenish, London) for the claimants.


Held, allowing the appeal, that section 1(1ZB) was dealing with who should have the right to enfranchise when there was a tenant of the house and also a tenant of a flat forming part of the house, the two being different persons; and that, therefore, the section did not apply to the defendant and did not prevent it from obtaining enfranchisement. (WLR)


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Legal Aid


Claimant in receipt of one legal aid certificate issuing two writs – master disallowing entirety of claimant’s costs – each originating process requiring fresh legal aid certificate


Pearce v Ove Arup Partnership Ltd and others: ChD (Mr Justice Peter Smith sitting with assessors): 29 June 2004


The claimant, who was in receipt of a legal aid certificate, issued and served a second writ on the defendants after the first writ expired before service. A second certificate was not obtained. After the proceedings had been dismissed, the master, following Bridgewater v Griffiths [2000] 1 WLR 524, disallowed the entirety of the claimant’s costs, on the basis that he had claimed costs relating to two sets of action (commenced by the two separate writs) under one certificate in breach of regulation 46(3) of the Civil Legal Aid (General) Regulations 1989 (SI 1989/339). That regulation provided that a legal aid certificate ‘shall not relate to more than one action, cause or matter’. The claimant nominally appealed against the master’s decision.


Nicholas Bacon (instructed by Anthony Gold, London) for the claimant; the defendants did not appear and were not represented.


Held, that the phrase ‘action, cause or matter’ in regulation 46(3) referred to the method of commencing proceedings, or different types of originating process; that the purpose of the limit in the regulation was to ensure that a legal aid certificate could not be used to create a multiplicity of claims; and that the regulation made it clear to solicitors that a fresh legal aid certificate was required for each originating process.


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Police


Confidential information – disclosure of non-conviction information to prospective employer – chief constable not required to invite representations before disclosure


R (X) v Chief Constable of the West Midlands Police: CA (Lord Woolf Lord Chief Justice, Lord Justice Mummery and Lord Justice Laws): 30 July 2004


The claimant, a man with no previous convictions, was charged with two counts of indecent exposure but the case was discontinued when the alleged victim failed to identify him at a covert identification parade. When the claimant subsequently applied for a job as a social worker, the chief constable provided the prospective employer with information on the indecent exposure allegations in the ‘other relevant information’ section of an enhanced criminal record certificate, issued pursuant to section 115 of the Police Act 1997.


On the claimant’s claim for judicial review, the judge [2004] 1 WLR 1518, held that the duty to act fairly on the part of the chief constable included an obligation to permit the claimant to make representations in relation to what was proposed to be disclosed and that, on the facts, there had not been a pressing social need for disclosure and he quashed the chief constable’s decision. The chief constable appealed.


Fiona Barton (instructed by the solicitor, West Midlands Police Authority, Birmingham) for the chief constable; Dan Squires (instructed by Public Law Solicitors, Birmingham) for the claimant; Rabinder Singh QC and James Strachan (instructed by the Treasury Solicitor) for the home secretary, as an interested party.


Held, allowing the appeal, that, having regard to the language of section 115, the chief constable was under a duty to disclose information which might be relevant unless there was some good reason for not doing so; that it imposed too heavy an obligation on the chief constable to require him to give an opportunity for a person to make representations prior to disclosure; that the chief constable’s statutory role was not in conflict with article 8 of the European Convention on Human Rights because the statute met the requirements of article 8(2); that, even if the allegations were untrue, the claimant’s position would be no worse than it would be if the prospective employer had asked the question, which it would be in accord with good employment practice to adopt for this class of employment, as to whether he had ever been charged with any criminal offence, since he would have had to answer that question honestly; that the information which was disclosed was information which a responsible employer in this field would want to know, and the making available of that information in accordance with the law could not be contrary to article 8(2); that, accordingly, the statute had properly conferred the responsibility of forming an opinion on the chief constable and, he having formed the opinion perfectly properly that certain information might be relevant, it was not for the courts to interfere. (WLR)


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Practice


Police – powers – stop and search – statutory power to stop and search at random for articles connected to terrorism – not infringing human rights


R (Gillan) v Commissioner of Police of the Metropolis and another; R (Quinton) v Same: CA (Lord Woolf Lord Chief Justice, Lord Justice Buxton and Lady Justice Arden): 29 July 2004


In September 2003, the claimants, a student and a journalist, were in the vicinity of a demonstration against an arms fair at an exhibition centre in Docklands, East London, when they were stopped and searched by police officers pursuant to an authorisation made by a senior police officer under section 44 of the Terrorism Act 2000 and confirmed by the home secretary, which allowed searches for articles which could be used in connection with terrorism. Nothing incriminating was found in either case.

The claimants sought judicial review of their treatment, of the authorisation, and of its confirmation. The Queen’s Bench Divisional Court dismissed their claims (The Times, 5 November 2003) and the claimants appealed.


Rabinder Singh QC and Rajiv Menon (instructed by the solicitor, Liberty) for the claimants; John McGuinness QC (instructed by the Directorate of Legal Services, Metropolitan Police) for the commissioner; Philip Sales and Philip Coppel (instructed by the Treasury Solicitor) for the home secretary.


Held, making no order on the appeals as against the commissioner but dismissing the appeals as against the home secretary, that the interpretation of the 2000 Act was a matter of law and there was no question of the court showing deference to the commissioner and home secretary because of the subject matter of the legislation; but that, on the ordinary meaning of sections 44 and 45, it was clear that Parliament, unusually, had permitted random stopping and searching, subject to a number of safeguards and, on that basis, the authorisation given under sections 44 and 45 could not conflict with the provisions of the European Convention on Human Rights; that the UK was faced with a real possibility of terrorist incidents and, therefore, a statutory power of random stop and search, which was subject to significant safeguards, was not, as a matter of principle, an unacceptable intrusion into the human rights of those who were searched; but that the onus was on the commissioner to show that the interference with the claimants of which complaint was made was lawful and, on the facts, it was not possible to say that that onus had been discharged; and that, accordingly, the court felt sure that the commissioner would wish to review carefully how the powers had been exercised and the briefing that officers on the ground had received before performing their powers and duties under the Act. (WLR)


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Trade


Musical editor producing new performing editions of 17th century compositions – recording company producing CD of new editions without licence from editor – production of new editions capable of vesting in editor copyright in musical work


Sawkins v Hyperion Records Ltd: ChD (Mr Justice Patten): 1 July 2004


The claimant, who was the leading world authority on the work of a 17th century French composer, prepared new performing editions of four of the composer’s works for recording on CD by the defendant company.


The claimant did not merely transcribe the original material since none of the works could have been performed using any of the earlier extant scores and, although he did not recompose the works, the claimant did add or correct many individual notes, flourishes and performing indications to the original works.


The CDs were produced, despite the fact that the claimant had not granted a licence to the defendant to reproduce his works in a recording. The claimant brought an action for infringement of copyright, seeking an injunction and an inquiry as to damages.


Andrew Norris (instructed by Carter-Ruck, London) for the claimant; Jacqueline Reid (instructed by Wiggin & Co, Cheltenham) for the defendant.


Held, that the production of a new performing edition of the score of an existing musical composition was capable of vesting in the editor copyright in the musical work, as recorded in the score; that a claim of copyright in a new version of a musical work could not be rejected simply because the editorial composer had not made significant changes to the notes, whether by correction or addition; that the question to ask in any case where the material produced was based on an existing score was whether the new work was sufficiently original in terms of the skill and labour used to produce it; and that the claimant had acquired copyright in the four editions, although the copyright had been infringed in only three of those.


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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