Defamation Employment Gaming Human rights Insurance Local government Practice Tort Trade


Defamation


Injunction - claimant seeking pre-trial injunction to restrain publication of alleged libel - rule in Bonnard v Perryman continuing to apply


Greene v Associated Newspapers Ltd: CA (Lords Justice Brooke, May and Dyson): 5 November 2004


The claimant brought an action for libel and sought an injunction before trial to prevent publication of a newspaper article. The judge refused the injunction.


On appeal, the claimant contended that, by virtue of sections 6(1) and 12(3) of the Human Rights Act 1998, the test as to grant of a pre-trial injunction was now whether the claimant was able to demonstrate that she was more likely than not at trial to be able to establish that publication should not be allowed.


Richard Spearman QC (instructed by Farrer & Co, London) for the claimant; Andrew Caldecott QC and Catrin Evans (instructed by Reynolds Porter Chamberlain, London) for the defendant.


Held, dismissing the appeal, that the judge had correctly found the approach advanced by the claimant to conflict with the rule in Bonnard v Perryman [1891] 2 Ch 269, and nothing in sections 6(1) or 12(3) of the 1998 Act could properly be interpreted as weakening the force of the rule; that, if a claimant were able at a pre-trial stage to stop a defendant from exercising its right under article 10 of the European Convention on Human Rights merely by arguing on paper-based evidence that it was more likely than not that the defendant could not show that what it wished to say about the claimant was true, it would seriously weaken the effect of article 10; and that once the claimant’s right to a fair reputation was put in issue, it was the function of the trial, and the duty of the jury, to determine whether he had a right to be vindicated.


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Employment


Unfair dismissal - award for loss of pension rights - proper approach to assessment


Port of Tilbury (London) Ltd v Birch and others: EAT (Judge Prophet, Mr BV Fitzgerald MBE and Mr BR Gibbs): 21 October 2004


An employment tribunal, having found all four employees to have been unfairly dismissed, rejected the evidence and submissions put forward by the parties in respect of loss of pension rights on the basis that neither party’s approach was one that was suggested by the guidance booklet Compensation for Loss of Pension Rights: Employment Tribunals, 3rd ed (2003), and proceeded to assess compensation for the loss of pension rights entirely on that basis. The employer appealed.


Paul Nicholls (instructed by McGrigors, Edinburgh) for the employer; Kevin Harris (instructed by Pattinson & Brewer, London) for the employees.


Held, allowing the appeal, that the first duty of the tribunal was to consider credible evidence and submissions put forward by the parties to ascertain if a fair assessment of compensation for loss of pension rights could be worked out on that basis; that if it could not do so, the tribunal had adequately to explain why not; and that it was an error of law to reject such evidence and submissions entirely on the basis that the approach was not one suggested in a booklet that was designed to provide guidance to tribunals in cases where there was little forthcoming from the parties as to how to approach the difficult area of assessment of proper compensation for loss of pension rights.


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Gaming


Scheme to solicit money from public to pool and bet on horse races - contributors not participating in management of scheme - scheme constituting regulated collective investment and unlicensed operator and participator liable to restitution order in respect of investors’ losses


Financial Services Authority v Fradley and another: ChD (John Martin QC sitting as a deputy High Court judge): 21 October 2004


The first defendant traded in bet placement services and the second defendant was a director and secretary of a betting company.


The defendants sent mailshots to the public, inviting them to participate in a scheme to make money on betting by utilising confidential information. Monies paid by participants were used in part as membership subscriptions; the remainder was pooled and placed on horse races. The members had no part to play in the management of the scheme. The scheme failed, resulting in a huge loss of the members’ contributions, and the company was wound up.


The Financial Services Authority, as the regulatory body, brought an action against the defendants for a restitution order, alleging that they had operated regulated activity without authorisation or exemption, in contravention of sections 19 and 21 of the Financial Services and Markets Act 2000, and applied for a summary judgment. The defendants contended that the scheme did not involve a property investment.


Rebecca Stubbs (instructed by Financial Services Authority) for the authority; Sudhanshu Swaroop (instructed by Elmhirst & Maxton, Leeds) for the defendants.


Held, granting the application, that where monies contributed by members participating in a scheme were pooled for betting, and the members had no participation or authority in the management of the scheme or the betting, the scheme constituted a collective investment scheme relating to property within section 235 of the 2000 Act; and that the operators of the scheme who had the knowledge that it had not been licensed by the Treasury contravened section 19 of the Act and were liable to have a restitution order made against them.


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Human rights


Discrimination - child support regulations’ failure to take account of absent parent’s pooled housing costs with same-sex partner breaching convention rights - failure of housing benefit avoidance provision to apply to same-sex couples not violating heterosexual woman’s convention rights


Secretary of State for Work and Pensions v M; Langley v Bradford City Metropolitan District Council: CA (Lords Justice Kennedy, Sedley and Neuberger): 19 October 2004


In the first case, the child support commissioner held that, in excluding same-sex couples from the definition of an unmarried couple, the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 were discriminatory, breaching the claimant’s right under article 14 of the European Convention on Human Rights to equality in enjoyment of article 8 rights, since the effect was to disregard an absent mother’s liability for her outgoings pooled with her new same-sex partner when assessing her child support liability in respect of her children living with her former husband. The secretary of state appealed.


In the second case, the social security commissioner held that regulation 7(1)(c)(i) of the Housing Benefit (General) Regulations 1987, which disregarded the claimant’s liability to pay rent to her former male partner in respect of her occupation of the house formerly occupied by them, did not infringe her rights under article 14, even though a rent liability to a former partner of the same sex would not have been disregarded. The claimant appealed.


Philip Sales and Daniel Kolinsky (Solicitor, Department of Work and Pensions) for the secretary of state; Karon Monaghan and Ulele Burnham (instructed by Liberty) for M; Richard Drabble QC and Rachel Perez (instructed by Stachiw Bashir Green, Bradford) for Langley; Kate Olley (instructed by Head of Legal Services, Bradford City Metropolitan District Council, Bradford) for the council.


Held, dismissing the appeals, that the child support scheme set out to respect family life by making allowances for the joint expenses of an absent parent’s new household; that (Lord Justice Kennedy dissenting) the resultant discrimination on grounds of sexual orientation in enjoyment of article 8 rights breached the claimant’s rights under article 14 and the regulations would be read down under section 3 of the Human Rights Act 1998 so as not to discriminate against the claimant; but that the claimant in the second case had failed to prove that there was a true comparator by comparison with whom she had suffered discrimination. (WLR)


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Insurance


Claimant’s husband killed by car being used as mini-cab - no passengers being carried - insurers not entitled to rely on insurance policy limitations


Keeley v Pashen and anor: CA (Lords Justice Brooke, Jonathan Parker and Keene): 10 November 2004


The first defendant, while driving his car as a mini-cab, killed a man who had just left the car, having reversed towards him to frighten him and other passengers who had also just left the car. The deceased’s widow made a claim on the driver’s third-party insurance for psychiatric injury. The insurers rejected the claim.


On the claimant’s action, the recorder accepted the insurer’s contention that the use of the car did not constitute ‘use only for social, domestic and pleasure purposes including travel to and from [a] permanent place of business’ and so was not covered by the policy, but rejected their contention that the car was being used for ‘hire or reward’, which use being expressly excluded under the policy. The widow appealed and the insurers cross-appealed.


Charles Bourne (instructed by Brachers, Maidstone) for the claimant; William Audland (instructed by Liddell and Co, Romford) for the insurer; the driver did not appear and was not represented.


Held, allowing the appeal and dismissing the cross-appeal, that the recorder had rightly found that the driver was not driving his car for hire or reward because his last fare-paying passengers had left the car; that furthermore the car was being driven ‘for social, domestic or pleasure purposes’, even though there had been a deviation by reversing towards the men to frighten them, and it was not correct to describe that deviation as a separate journey; that although the driver might not himself be able to recover, an innocent third party was not prevented from enforcing her rights under the policy and statute; but that, had the essential character of the journey consisted of use for a criminal purpose, the car would not be being used for ‘social, domestic or pleasure purposes’.


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Local government


Planning - proposal for asylum seekers’ centre to be constructed and operated by private contractor on Crown land - planning permission not required for development for Crown’s benefit and use of non-statutory consultation procedure appropriate


R (Cherwell District Council) v First Secretary of State and another: CA (Lords Justice Chadwick and Dyson and Mr Justice Munby): 28 October 2004


The Home Office consulted the local planning authority under circular 18/84 on a proposal to build an asylum seekers’ centre on Crown land, which would be leased to a private company to build and run the centre under a public/private partnership.


The local planning authority objected to the proposed development and the first secretary of state appointed an inspector to hold a public inquiry. The inspector recommended against the development but the first secretary nevertheless approved it. The local planning authority’s claim for judicial review by way of an order to quash the first secretary’s decision was refused by Mr Justice Collins [2004] EWHC 724 (Admin). The local planning authority appealed.


David Elvin QC and Reuben Taylor (instructed by Solicitor, Cherwell District Council, Banbury) for the local planning authority; Philip Sales and Sarah Moore (instructed by Treasury Solicitor) for the first secretary; Keith Lindblom QC and Rupert Warren (instructed by Berwin Leighton Paisner, London) for the home secretary.


Held, dismissing the appeal, that the fact that planning permission could have been sought under section 299 of the Town and Country Planning Act 1990 did not oblige the Home Office to do so rather than conduct a circular 18/84 consultation; that, since section 294(1) of the 1990 Act protected persons other than the Crown (including the Crown’s contractors and lessees) from the issue of enforcement proceedings in respect of development carried out ‘by or on behalf of the Crown’, where the sole purpose of a development under a public private partnership was for the benefit of a government department, the use of the circular 18/84 procedure did not deprive the local planning authority of enforcement powers which it would have enjoyed had planning permission been sought; and that, accordingly, it was not unlawful or an abuse of process for the company to carry out the development in accordance with the circular 18/84 procedure. (WLR)


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Practice


Court of Appeal (Civil Division) - short applications - consideration to be given to whether use of video-link facility more appropriate than appearance at court


Babbings (through her mother and litigation friend) v Kirklees Metropolitan Council: CA (Lords Justice Brooke and Dyson): 11 October 2004


The claimant had sustained injury as a child while she was at school. Her claim in personal injury was dismissed after a trial in the county court. The claimant applied for permission to appeal, by way of a short appearance by counsel in the Court of Appeal.


Richard Norton (instructed by Grieves Solicitors, Huddersfield) for the claimant.


Held, dismissing the application, that the half-hour application, which had involved counsel travelling to London from Manchester, was a good example of how the new video-link facility at the Court of Appeal would be helpful, and counsel should consider in such circumstances whether it would be more appropriate to make use of such a facility than to appear in person; and that, although costs would be dealt with in the usual way, in future it might be considered appropriate for the court to have regard to the relative costs of a video-link hearing and an attendance at court.


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Tort


Highways - formation of ice - no common law duty on highway authorities to prevent


Sandhar and anor v Department of Transport, Local Government and the Regions: CA (Lords Justice Brooke, May and Thomas): 5 November 2004


The first claimant’s husband was killed when he lost control of his car on an unsalted road, skidding on frost or ice. The claimants brought an action for damages against the highway authority, alleging breach of a statutory or common law duty to take reasonable care to prevent the formation of ice on roads. The judge dismissed the claim. The claimants appealed.


John Ross QC (instructed by Hawkins Russell Jones, Hitchin) for the claimants; Nigel Wilkinson QC and William Hoskins (instructed by Treasury Solicitor) for the highway authority.


Held, dismissing the appeal, that, unless the highway authority so conducted itself as to create a reasonable expectation about the state of the highway that gave rise to a duty to ensure that it did not thereby create a trap for the careful motorist who drove in reliance on such an expectation, there was no common law duty of care; and that, since the highway authority could not be said to have created such a trap, and since at the time of the accident there was no statutory duty to prevent the formation of ice on the highway, it was not liable to the claimants. (WLR)


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Trade


Secretary of state introducing regulations providing exceptions to total ban on tobacco product advertising - regulations restricting advertisements at point of sale and on vending machines - not disproportionately restrictive


R (British American Tobacco plc and others) v Secretary of State for Health: QBD (Mr Justice McCombe): 5 November 2004


The Tobacco Advertising and Promotion (Point of Sale) Regulations 2004, scheduled to come in force on 21 December 2004, provide exceptions to the total ban on the advertising of tobacco products contained in the Tobacco Advertising and Promotion Act 2002. The regulations impose limitations on advertisements at point of sale, and confine advertising on tobacco vending machines to a picture of the packets available from the machine. The first five claimants were manufacturers of tobacco products and the sixth claimant supplied vending machines for tobacco products. They sought judicial review.


David Pannick QC and Thomas de la Mare (instructed by Lovells, London) for the claimants; Philip Sales and Jason Coppel (instructed by Solicitor, Department of Health) for the secretary of state.


Held, dismissing the claim, that it was entirely legitimate for the secretary of state to regulate in the manner proposed in a context where Parliament obviously intended some restriction of point of sale advertising, which would lead to the reduction of the impact of the promotions that had developed hitherto; that the court was in no position on a claim for judicial review to weigh up the pros and cons of particular levels of that type of advertising; that, having regard to the constraints, there was no basis in law for criticising the secretary of state for drawing that line where he had, and he was to be permitted a considerable discretion in finding the correct line; that the regulations were not too blunt an instrument in their application to premises such as catering establishments, night-clubs or large supermarkets or stores; and that, accordingly, the limited exception to the overall ban on advertising of tobacco products was not disproportionately restrictive and was lawful.


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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