Costs Criminal Ecclesiastical Employment Family International Insolvency Planning


Costs



Expert witness - breach of duty - court able to make costs order against expert whose evidence given in reckless disregard of his duties to the court caused significant expense to be incurred

Phillips and others v Symes and others: ChD (Mr Justice Peter Smith): 20 October 2004



At the hearing of a preliminary issue on the capacity of the first defendant, a consultant psychiatrist gave expert evidence to the effect that the first defendant lacked mental capacity for the purposes of the proceedings.



It was held that the first defendant did not lack capacity. The claimants, submitting that the expert had acted in serious breach of his duties to the court under part 35 of the Civil Procedure Rules 1998 and the practice direction supplementing part 35, concerning experts, obtained an order joining the expert to the proceedings for the sole purpose of pursuing a costs order against him, since it was unlikely they would recover their costs from the first defendant. A preliminary issue was ordered to be tried on the issue of whether a costs order could be made against such an expert.



Alan Steinfeld QC, John Stephens and Jessica Chappell (instructed by Lane & Partners, London) for the claimants; Justin Fenwick QC and Leigh-Ann Mulcahy (instructed by Manches, Oxford) for the expert.



Held, that, in the light of the duties enshrined in CPR part 35 and the practice direction, a court could, in appropriate circumstances, make a costs order against an expert who, by his evidence, had caused significant expense to be incurred and had done so in flagrant reckless disregard of his duties to the court; and that, further, the only warning required to be given to an expert was the self-evident one set out in the CPR and the statement of truth which he signed under the requirements of the practice direction.



Defendant offering by letter to settle money claims under parts 36 and 44 of the Civil Procedure Rules without making payment into court - court in assessing costs to treat letter as part 36 offer - same costs consequences as payment in

Crouch v King's Healthcare NHS Trust; Murry v Blackburn Hyndburn & Ribble Valley Health Care NHS Trust: CA (Lords Justices Waller and Mance and Sir Christopher Staughton): 15 October 2004


In the first appeal the NHS trust, by a standard letter 'under the provisions of CPR part 36 and 44', offered a sum in settlement of a claim for damages for personal injuries but did not make a payment into court.



The judge awarded damages and ordered the trust to pay all the costs. In the second appeal the NHS trust made a similar offer which it applied to withdraw.



The judge refused the application. Both trusts appealed.



Philip Havers QC (instructed by Kennedys and by Hempsons, London and Manchester respectively) for the NHS trusts; Simeon Maskrey QC (instructed by Osborne Morris & Morgan, Leighton Buzzard) for the second claimant and assisting the court on behalf of the first claimant, who was otherwise not represented.



Held, allowing the first appeal and dismissing the second, that an NHS trust could send a written offer expressed as 'made under the provisions of CPR part 36 and part 44' to settle a money claim, as opposed to making a payment into court, thereby putting the claimant at risk for costs from 21 days from the offer date; and that the court should treat the offer as admissible and as having the same costs consequences as if the sum had been paid in.



Criminal



Sentence - confiscation order - no discretion whether to include offender's share in matrimonial home among realisable assets

R v Ahmed and another: CA (Lord Justice Latham, Mr Justice Pitchers and Mr Justice Royce): 28 October 2004


The judge made confiscation orders against the two defendants under section 71 of the Criminal Justice Act 1988, as amended by section 1 of the Proceeds of Crime Act 1995.



In computing their realisable assets, he took into account the value in each case of the defendant's half share in his matrimonial home, accepting that in each case the probability was that the home would have to be sold to meet the confiscation order. The defendants appealed on the ground that the court had a discretion as to whether or not to include the value of such shares, which should have been exercised in their favour.



Michael House (assigned by the Registrar of Criminal Appeals) for the first defendant; Simon Farrell QC (assigned by the Registrar of Criminal Appeals) for the second defendant; Michael Brompton QC and Janet Weeks (instructed by the solicitor, Customs and Excise) for the Crown.



Held, dismissing the appeals, that the amendments introduced by the 1995 Act had changed the court's general discretion in relation to the making of a confiscation order under section 71 into a duty to make an order where the prosecution gave the appropriate notice; that the phrase 'the amount appearing to the court' in section 71(6)(b) of the Act was not intended to import any discretion, but merely referred to the evaluation or valuation process that the court had to carry out under section 74; that, since the court was merely concerned with the arithmetical exercise of computing what was, in effect, a statutory debt without any assessment of the way in which that debt might ultimately be paid, at that stage of the process the rights of the offender's family under article 8 of the European Convention on Human Rights did not arise; and that, accordingly, the court had no discretion whether or not to include an offender's share in the matrimonial home as part of his realisable property.



Conspiracy to assist another to retain benefit of crime - evidence showing suspicion that money obtained by means of crime - no requirement to prove actual knowledge

R v Sakavickas and another: CA (Lord Justice Kennedy, Mr Justice Morison and Elias): 3 November 2004


The two defendants were convicted of conspiracy to assist another to retain the benefit of criminal conduct contrary to section 93A of the Criminal Justice Act 1988 (as inserted by section 29 (1) of the Criminal Justice Act 1993, but now repealed by the Proceeds of Crime Act 2002 (Commencement No 4 Transitional Provision and Savings) Order 2003).



On appeal, the second defendant contended that it was not enough to show that he had suspected that the first defendant and associates had obtained the money by means of crime, since section 1(2) of the Criminal Law Act 1977 required the prosecution to prove knowledge.



Sean Kivdeh and David Owusu (instructed by Bankside Law Ltd, London) for the first defendant; Gareth Rees QC (instructed by Kingsley Napley, London) for the second defendant; David Jeremy (instructed by the Crown Prosecution Service) for the prosecution.



Held, dismissing the appeal, that for the purposes of section 93A the existence of suspicion, as an alternative to actual knowledge, was a fact to be proved by the prosecution; that it was the suspicion, as opposed to the fact, that a co-defendant was engaged in criminal conduct which was, for the purposes of section1(2) of the 1977 Act a 'fact or circumstance necessary for the commission of the offence'; and that in any event, since an offence contrary to section 93A was not an offence where liability could be incurred without knowledge on the part of the alleged offender of any such fact or circumstance, it was not an offence to which section 1(2) applied.



Eccleseastical



Faculty - exhumation - petitioner wishing to obtain DNA sample - no compelling case for exhumation

In re St Nicholas' Churchyard, Sevenoaks: Court of Arches of Canterbury (Sheila Cameron QC, Dean of the Arches, Chancellor Collier and Chancellor Wiggs Ch): 30 September 2004


The petitioner sought a faculty to exhume the remains of his grandfather, which were interred on consecrated ground in 1907.



The purpose of the proposed exhumation was to obtain a sample of bone from the remains to enable DNA testing to be carried to ascertain if there was scientific support for the family's long-held belief that the deceased was the illegitimate son of Princess Louise, a daughter of Queen Victoria. The chancellor refused to grant the faculty and the petitioner appealed.



Michael Gledhill QC appeared pro bono for the petitioner.



Held, dismissing the appeal, that the Court of Arches of Canterbury and the Chancery Court of York were for the purposes of the doctrine of precedent to be regarded as two divisions of a single court; that therefore consistory courts had to have regard to decisions of the appellate court, whether or not given in their province, with a later decision prevailing over an earlier one; that there had to be good reason for an exhumation to carry out DNA testing and a whim or idle curiosity would not suffice; that the test was not the strength and sincerity of the petitioner's wishes, but whether on the evidence he had proved a cogent and compelling case for the exhumation; that genealogical interest alone could not justify a purely speculative exploratory expedition; that the desire, in the absence of any records, to investigate by means of DNA testing the parentage of a grandfather did not engage the right to respect for private and family life contained in article 8 of the European Convention on Human Rights, and even if it did, no breach could be established because of the remoteness of the relationship sought to be investigated; that the petitioner had failed on the evidence to establish that there was a real likelihood of any connection between the deceased and Princess Louise; and that, accordingly, the petition for a faculty would be refused. (WLR)



Employment



Unfair dismissal - failure to comply with reinstatement order &150; arrears of pay subsumed within compensatory award and subject to statutory cap

Parry v National Westminster Bank plc: CA (Lords Justice Mummery, Maurice Kay and Gage): 1 November 2004


The applicant was a bank manager when he was dismissed by the employer bank after 33 years of service.



An employment tribunal found that he had been unfairly dismissed. The bank refused to comply with the tribunal's order for reinstatement. The tribunal awarded compensation comprising a basic award, a compensatory award of £53,500 (the maximum), an additional award and a sum for arrears of pay and benefits between the date of dismissal and the date of the remedies hearing of £21,188, a total of £94,583.



The applicant appealed seeking full compensation for his losses. The bank cross-appealed on the ground that the arrears of pay should have been subject to the statutory cap in section 124 of the Employment Rights Act 1996. The Employment Appeal Tribunal dismissed the appeal and allowed the cross-appeal, reducing the award by £21,188. The applicant appealed.



The applicant in person; Brian Napier (instructed by Brodies WS, Edinburgh) for the bank.



Held, dismissing the appeal, that, where following a finding of unfair dismissal the employer refused to comply with the tribunal's order for reinstatement, the arrears of pay which the employer would have paid if reinstatement had occurred were payable not as a separate award but as part of the compensatory award, and were therefore subject to the statutory cap unless they came within a specific exception in section 124 of the 1996 Act; that where the amount for arrears did not of itself exceed the statutory maximum the statutory cap applied; and that, accordingly, the applicant's arrears of pay were subsumed in the compensatory award.



Family



Mother removing child from country of residence - emotional and psychological factors relevant to whether child settled in new country - court retaining residual discretion to return settled child

Cannon v Cannon: CA (Lords Justices Thorpe, Waller and Maurice Kay): 19 October 2004


In July 1999, a child was wrongfully removed by her mother from California to England, in breach of the father's rights of custody. The child's whereabouts were deliberately concealed from the father until October 2003.



On discovering that the child was in England, the father instituted proceedings under the Hague Convention on the Civil Aspects of Child Abduction, as scheduled to the Child Abduction and Custody Act 1985. The judge held that when determining whether a child was settled in her new environment for the purposes of article 12 of the convention, regard was only to be had to the physical characteristics of settlement; and in proceedings commenced more than a year after wrongful removal, and where the child was settled, there was no residual power or discretion under the convention to order return. The father appealed.



Henry Setright QC and Ian Lewis (instructed by Reynolds Porter Chamberlain, London) for the father; Alison Ball QC (instructed by Ballam Delaney Hunt, Birkenhead) for the mother.



Held, allowing the appeal, that when considering whether a child was settled in its new environment regard had to be paid to the emotional and psychological characteristics of settlement as well as the physical elements; that in cases of concealment and subterfuge the burden of demonstrating the necessary elements of emotional and psychological settlement was much increased; and that, even if settlement were established on the facts, the court retained a residual discretion to order the return under of the child under article 18 of the convention.



International



State immunity - claims alleging systematic torture of claimants by state officials while in custody of foreign state - state entitled to immunity in respect of torture claims - no immunity in respect of claims against officials

Jones v Ministry of the Interior of The Kingdom of Saudi Arabia and Another (Secretary of State for Constitutional Affairs and Another as interveners): CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justice Mance and Neuberger): 28 October 2004


In two separate actions, the claimants alleged that they had been tortured while in prison in Saudi Arabia and claimed damages for the resulting psychological problems they suffered on returning to the UK.



In the first action, an additional claim was made in respect of the same allegations against the Kingdom of Saudi Arabia. At preliminary hearings on grounds of state immunity, the claim against the kingdom was dismissed and service out of the jurisdiction was refused in respect of the claims against the officials. The claimants appealed.



Michael Crystal QC, Jonathan Crystal and Julian Knowles (instructed by Stock Fraser Cukier, London) for the claimant Mr Jones; David Pannick QC and Joanna Pollard (instructed by Baker & McKenzie, London) for Saudi Arabia; David Lloyd Jones QC and Jemima Stratford (instructed by the Treasury Solicitor) for the secretary of state; Keir Starmer QC, Peter Morris and Laura Dubinsky (instructed by Bhatt Murphy, London) for the second intervener, the Redress Trust; Edward Fitzgerald QC and Richard Hermer (instructed by Bindman & Partners, London) for the claimants in the second action.



Held, dismissing the appeal against the striking out but allowing the appeals against the refusal to order service out, that the personal immunity from suit enjoyed by a foreign state in UK courts under section 1(1) of the State Immunity Act 1978 did not extend to blanket subject-matter immunity in respect of a state official alleged to have committed torture; and that in determining whether any individual claim against a state official ought to proceed a court should consider and balance at the same time all relevant factors including state immunity and jurisdiction.



Insolvency



Companies subject to court-ordered administration - companies using new procedure to move from administration to creditors' voluntary liquidation and dissolution - no order required terminating administrator's appointment or discharging administration order

In re Ballast plc (in administration) and others: ChD (Mr Justice Blackburne): 21 October 2004


Three companies entered administration pursuant to a court order a month after the commencement of the new regime introduced into the Insolvency Act 1986, schedule B1, allowing a company to move straight from administration to a creditors' voluntary liquidation (paragraph 83 of schedule B1) or dissolution (paragraph 84 of schedule B1).



The joint administrator of the companies applied to the court for, among other things, directions as to the appropriate manner in which to exit the administration. In particular, the administrator asked whether the new procedures under paragraphs 83 and 84 were available without first obtaining an order of the court providing for the termination of the administrator's appointment under paragraph 79 of Schedule B1, and the discharge of the administration order under paragraph 85.



Richard Fisher (instructed by Taylor Wessing, London) for the administrator.



Held, that pursuant to paragraph 83, the registration of a notice sent by the administrator brought his appointment to an end; that the consequence of serving such a notice was to substitute one insolvency regime (a creditors' voluntary liquidation) in place of another (administration) so that the one followed without interruption from the other; that paragraph 79 provided a separate exit from administration from that provided by paragraph 83 or paragraph 84; and that it was open to administrators of companies subject to court ordered administration to use the new procedure under paragraphs 83 and 84 without first applying to the court for an order under paragraphs 79 or 85.



Planning



Decision notice failing to include summary reasons for granting planning permission - seeking extrinsic post hoc reasons for decision inappropriate - notice quashed

R (Wall) v Brighton and Hove City Council: QBD (Admin) (Mr Justice Sullivan): 2 November 2004


The local planning authority's decision notice failed to include a summary of the planning committee's reasons for granting permission, contrary to the requirements of article 22(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995 (as substituted by article 5 of the Town and Country Planning (General Development Procedure) (England) (Amendment) Order 2003.



Five months later, the authority contacted councillors to elicit their reasons for voting in favour of granting permission, proposing to correct the defect by issuing an amended decision notice. The claimant sought judicial review, contending that article 22(1), as amended, laid down requirements for the decision making process itself and that since the notice had contained no reasons whatsoever it was legally flawed and it should be quashed.



James Pereira (instructed by Richard Buxton, Cambridge) for the claimant; Jennifer Wigley (instructed by the head of law, Brighton and Hove City Council, Brighton) for the local planning authority.



Held, granting judicial review and quashing the decision notice, that in amending article 22(1) of the order, Parliament clearly intended that summary reasons should be included in the decision notice itself; that to allow extrinsic post hoc evidence as to what those reasons had been would perpetuate the problems that Parliament intended the substituted article 22(1) to address; that the proper course would have been for the matter to have gone back at the earliest opportunity for the committee to decide, in public session, what its summary reasons for granting planning permission had been; but that here, in the absence of any good reason for not doing so, the proper approach was for the court to exercise its discretion to quash the notice.