Defamation Human Rights Social Services Tort


Defamation



Newspaper publishing article about financial service group - company claiming damages for diminution in market value - measure of damages too uncertain

Collins Stewart Ltd and another v The Financial Times Ltd: QBD (Mr Justice Tugendhat):

20 October 2004



The defendant publisher of The Financial Times published an article which the claimants, a financial service group, claimed to be defamatory.


The claim for damages included a claim for all special damage caused to the claimants' business as a result of the publication complained of, including £230.5 million in damages for the difference between the actual and the potential market capitalisation of the company. The defendant applied to strike out that part of the claim for damages.


Richard Spearman QC and Justin Rushbrooke (instructed by Schillings, London) for the claimants; Desmond Browne QC, Leon Kuschke and David Sherborne (instructed by Farrer & Co, London) for the defendant.


Held, allowing the application, that the figure given by the claimants as the alleged shortfall was a proposition which the court was invited simply to take on trust, and that proposition was, if anything, a proposition of law rather than a statement of fact; that while damages for wrongful interference with goods were sometimes assessed by reference to market prices, the general rule was then to assess them at the time of the wrong committed, not the time of trial, and while there were no absolute rules, a date which was ascertainable by a rule, rather than by the chances of listing the case for a hearing, was to be preferred as a matter of principle; and that, accordingly, the suggested measure of damages was far too uncertain to be acceptable as a legal basis for assessing damages.



Human Rights



Prisoners' right to recommendation by Parole Board - foreign nationals serving long-term prison sentence denied reference to Parole Board - denial of parole reference not discriminatory

R (Hindawi) v Secretary of State for the Home Department; R (Headley) v Same: CA (Lords Justice Kennedy, Sedley and Neuberger): 13 October 2004


Hindawi, a Syrian national, was sentenced to 45 years' imprisonment in 1986 for attempting to place a bomb in an aircraft and Headley, a Jamaican national, was sentenced to seven years' imprisonment for conspiracy to import drugs in 2000. Both prisoners were to be deported after they had served the required minimum sentence period.


In January and April 2003 respectively, Headley and Hindawi applied to the secretary of state to refer their cases to the Parole Board to consider their early release, and the secretary of state, by letters written in May and July, rejected their respective applications without referring their matters to the Parole Board on the basis that he was not obliged to refer such applications relating to prisoners of foreign nationals liable for deportation.


On 29 January 2004, Mr Justice McCombe, granting their applications for judicial review, relied on the grounds that discriminatory treatment of their cases was contrary to articles 5 and 14 of the European Convention on Human Rights. The secretary of state appealed.


David Pannick QC and Parishil Patel (instructed by Treasury Solicitor) for the secretary of state; Tim Owen QC and Hugh Southey (instructed by Birnberg Peirce & Partners, London) for Hindawi; Tim Owen QC and Hugh Southey (instructed by Irwin Mitchell, London) for Headley.


Held, allowing the appeals, that the discrimination had an objective and reasonable justification, as explained in the Carlisle Committee's report on The Parole System in England (1988) (Cm 532), and approved by Parliament to achieve a fair balance in the treatment of prisoners serving similar sentences; and that the statutory right of prisoners to seek their release on licence was not a right to liberty or security within the ambit of article 5 of the convention for seeking non-discriminatory treatment under article 14.



Statutory defences - burden of proof - drunk in charge of motor vehicle - belonging to proscribed organisation - whether statutory defences incompatible with presumption of innocence

Sheldrake v Director of Public Prosecutions; Attorney-General's Reference No 4 of 2002: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry and Lord Carswell):

14 October 2004


The defendant in the appeal was convicted before the justices of being drunk in charge of a motor vehicle, contrary to section 5(1)(b) of the Road Traffic Act 1988.


The Divisional Court allowed the defendant's appeal by case stated on the ground that the likelihood of driving while over the limit was the gravamen of the offence under section 5(1) of the 1988 Act, and the statutory defence under section 5(2) violated the presumption of innocence guaranteed by article 6(2) because it enabled a defendant to be convicted even though the court was not sure of that likelihood and that, although section 5(2) pursued a legitimate aim, it was disproportionate to impose a legal burden upon the defendant to show that there was no likelihood of his driving. The Director of Public Prosecutions appealed.


The defendant in the Attorney-General's reference was charged with belonging to, and professing to belong to, a proscribed organisation, contrary to section 11(1) of the Terrorism Act 2000.


The judge ruled that there was no case to answer on the ground that the defendant had successfully raised, pursuant to section 11(2), the issue of when he first became, or professed to be, a member of the organisation and that, the prosecution had failed to prove that he had taken part in the organisation's activities since proscription.


On the Attorney-General's reference, the Court of Appeal ruled that section 11(2) imposed a legal, rather than an evidential, burden on the defendant and was compatible with the presumption of innocence. The Court of Appeal made a reference to the House of Lords.


David Perry and Jonathan Ashley-Norman (instructed by the Crown Prosecution Service) for the Director of Public Prosecutions; James Turner QC, Jamas Hodivala and Allan Compton (instructed by Budd Martin & Burret, Chelmsford) for the defendant in the appeal; Tim Owen QC, Anne Richardson and Danny Friedman (instructed by Michael Purdon, Newcastle upon Tyne) for the acquitted person in the reference; David Perry and Gareth Patterson (instructed by the Crown Prosecution Service) for the Attorney-General.


Held, that the justifiability of any infringement of the presumption of innocence could not be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case; that, allowing the appeal by the Director of Public Prosecutions, section 5(2) of the 1988 Act was plainly directed to a legitimate object, namely, the prevention of death, injury and damage caused by unfit drivers; that the offence under section 5(1) did not require proof that the defendant was likely to drive but the defendant was given the opportunity by section 5(2) to exonerate himself by showing there was no such likelihood; that the burden placed on the defendant could not be regarded as beyond reasonable limits or in any way arbitrary and it was not objectionable to criminalise a defendant's conduct in those circumstances without requiring a prosecutor to prove criminal intent; and that, therefore, imposition of a legal burden of proof on the defendant did not go beyond what was necessary; that in the Attorney-General's reference, (Lord Rodger of Earlsferry and Lord Carswell dissenting) the scope of 'profess' within the meaning of section 11(1) of the 2000 Act was so uncertain that some of those liable to be convicted and punished for professing to belong to a proscribed organisation might be guilty of no conduct which could reasonably be regarded as blameworthy or such as should properly attract criminal sanctions; that the effect of section 11(2) was not to make participation in the activities of the organisation while proscribed an ingredient of the offence under section 11(1); that reading down section 11(2) so as to impose an evidential, instead of a legal, burden on the defendant fell well within the interpretative principles applicable; that such was not Parliament's intention when enacting the 2000 Act, but it was Parliament's intention when enacting section 3 of the Human Rights Act 1998; and that, therefore, section 11(2) should be read and given effect as imposing on the defendant an evidential burden only. (WLR)



Social services



Child support - self-employed absent father - calculation of earnings to take account of capital allowances

Smith v Smith and another: CA (Lords Justice Ward, Wall and Sir Martin Nourse):

19 October 2004


After their marriage broke down in 1997, the mother applied to the Child Support Agency for maintenance from the non-resident father for their three children.


The father was self-employed in the car hire trade and for tax purposes was entitled to substantial capital allowances. Issues arose under the Child Support Act 1991, as amended by the Child Support Act 1995, the Child Support (Miscellaneous Amendments) Regulations 1999 (SI 1999/977), and the Child Support (Departure Direction and Consequential Amendments) Regulations 1996 (SI 1996/2907), as to whether the father's income for the year to March 2000 was to be calculated after deduction of his entitlement to capital allowances.


A child support commissioner (Mr PL Howell QC) refused to allow any deduction, concluding that the father's income be based on profits of £169,520. The father appealed.


David Burrows, solicitor-advocate, and James Henderson (instructed by David Burrows Solicitors, Bristol) for the father; Nicholas Mostyn QC and Giles Goodfellow QC (assigned by the Bar Pro Bono Unit and instructed by Family Law in Partnership) for the mother; Nathalie Lieven (instructed by Office of the Solicitor, Department of Works and Pensions) for the secretary of state.


Held, allowing the appeal and remitting the assessment for adjustment, that Parliament's sloppy and untidy efforts to simplify administration by the Child Support Agency by introducing the 1999 amendment regulations resulted in absurdity and injustice; but that the effect of those regulations taken together with income tax legislation and the Capital Allowances Act 1990, required calculation of a self-employed trader's earnings to be made after deduction of the allowances.



Tort



Surgeon failing to warn claimant of inherent risk of paralysis in lumbar surgery - surgery performed without negligence but risk eventuating - claimant sufficiently satisfying causation test by proving she would not, if properly informed, have undergone surgery when she did

Chester v Afshar: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Walker of Gestingthorpe):

14 October 2004


Following the defendant's advice, the claimant consented to surgery which resulted in partial paralysis.


In negligence proceedings, the judge found that, although surgery was not performed negligently, the defendant failed to warn the claimant of the inherent risk which occurred.


The judge also found that, if warned, she would not have undergone surgery then but would have sought further advice. He concluded that the necessary causal link was established and gave judgment in her favour.


The Court of Appeal dismissed the defendant's appeal. The defendant appealed.


Martin Spencer QC and Kristina Stern (instructed by Hempsons, London) for the defendant; Adrian Whitfield QC and Jacqueline Perry (instructed by Eversheds, Newcastle upon Tyne) for the claimant.


Held that, since the claimant did not assert that, if informed, she would never have consented to the operation and since failure to warn was not the effective cause of the injury, the claimant could not succeed on conventional causation principles, but that, dismissing the appeal (Lord Bingham and Lord Hoffmann dissenting), the scope of the doctor's duty to warn was closely connected with the need for the claimant's consent and her right to exercise an informed choice as to whether and, if so, when and by whom to receive treatment; that since the injury was within the scope of that duty and was the result of the risk of which she was entitled to be warned, it was to be regarded as caused by the defendant's failure; and that, accordingly, justice required a narrow modification of traditional principles to vindicate her right. (WLR)