AGRICULTURE

Agricultural holdings - animal diseases - measure of damages - mortgagees - transactions at an undervalue - trespass to land

Department for Environment Food & Rural Affairs v Kevin Andrew Feakins & anor: CA (Civ Div) (Lords Justice Waller, Jonathan Parker, Moses): 9 December 2005



The appellant husband and wife (F and H) appealed against the decision ([2004] EWHC 2735 (Ch)) that an arrangement into which they had entered relating to the sale of a farm constituted a transaction at an undervalue for the purposes of section 423 of the Insolvency Act 1986. F and H also appealed and the respondent department cross-appealed against the judge's findings in respect of trespass by the department when conducting cleaning-up operations after an outbreak of foot-and-mouth disease.


F owned a farm that was mortgaged to the bank. With the consent of the bank, an agricultural tenancy of the land had been granted to a company controlled by F. The farm was also subject to a charging order nisi in favour of the department as a judgment creditor.


A case of foot-and-mouth disease had been diagnosed at the farm and the department took steps to dispose of the livestock, and cleanse and disinfect the farm. The slaughtered animals, including animals owned by others, had been cremated on the farm and the ash buried in a pit. Another pit had been excavated for disposal of general rubbish from the cleansing operation. In the meantime, the bank sold the farm as mortgagee to H for £450,000, subject to the tenancy. That sale overreached the department's charge and the bank took the proceeds under its charge. The company then surrendered the tenancy and H agreed to sell the farm with vacant possession for just over £1 million.


The judge held that the tenancy had been maintained by F purely as a device to depress the value of the farm and to induce the bank to sell it to H at an undervalue. The judge did not reinstate the tenancy but ordered that H's freehold interest should stand charged with the payment of the sums due to the department under its charge.


F and H submitted that there were only two relevant transactions for the purposes of section 423 of the 1986 Act, the sale by the bank as mortgagee to H and the surrender of the tenancy, neither of which was entered into by F; that F had not given any consideration for the transaction since the surrender had been effected by the company; and that the judge's refusal to reinstate the tenancy put the department in a better position than it was in prior to the sale.


In relation to the department's alleged trespass, F and H contended that it was not open to the department to justify its trespass because the ground which it used to bury ash from cremated animal carcasses was not 'suitable in that behalf' within the meaning of section 34(4) of the Animal Health Act 1981, and that the operations had been unlawful because there had been breaches of relevant EU provisions.


Nicholas Dowding QC, Stephen Jourdan (instructed by Burges Salmon) for the appellants on the claim; Stephen Jourdan (instructed by Burges Salmon) for the appellants on the counterclaim; Nicholas Caddick, Sarah Lee (instructed by the Solicitor, Department for Environment Food and Rural Affairs (DEFRA) for the respondents on the claim); Neil Garnham QC, Sarah Lee, Paul Harris, Sarah Stevens (instructed by the Solicitor, DEFRA) for the respondents on the counterclaim.


Held, The judge had clearly been right to find that the plan or arrangement made between F and H in relation to the sale of the farm was a 'transaction' for the purposes of section 423. The sale of the farm by the bank as mortgagee subject to the tenancy, coupled with the concealed commitment to surrender the tenancy, enabled H to become the owner of the farm, free from the department's charge. By virtue of section 436 of the 1986 Act, 'transaction' included an 'arrangement' and arrangement on its natural meaning and in the context of section 423 was apt to include an agreement or understanding between parties, whether formal or informal, oral or in writing, Treharne v Brabon [2000] BCC 171 distinguished. F did provide and receive consideration in relation to the transaction and the requirements of section 423(1)(c) were satisfied. The purpose of the transaction was to prejudice the department's interests within section 423(3), and the department was a victim of the transaction within section 423(5).


The judge's order was varied to reinstate the tenancy, since otherwise the department's position as a secured creditor would be better than it was previously. Subject to varying the judge's order in that way, the appeal of F and H was dismissed.


The department could justify the legality of interference with private rights on the farm by reference to statutory authority and the statutory scheme under part II of the 1981 Act had to be analysed to establish whether there was an express power authorising a particular activity or a power conferred by necessary implication. The statutory scheme provided no general power to interfere permanently with private property rights. The only authority conferred by the statute to interfere permanently with private property rights was the power to bury carcasses in section 34(4) of the 1981 Act. The words 'suitable in that behalf' in section 34(4) merely connoted an obligation on the part of the minister to bury a carcass in an appropriate position, having regard to the private possession or occupation of the ground where the carcass was to be buried. The statutory authority conferred by section 34(4) was not removed once any breach of the relevant EU provisions relating to transmissible spongiform encephalitis and the pollution of groundwater was established.


Breaches of those provisions were relevant only if they affected the nature or extent of the department's interference with private interests on the farm. The department's activities on the farm did not create any risk of transmission of transmissible spongiform encephalitis to humans. The alleged breaches of the groundwater provisions had no relevance to the extent of the immunity against an action for trespass conferred by the 1981 Act.


The department had no statutory authority for excavating the rubbish pit or for burying on the farm the ashes of animals owned by others. The department's appeal on those two issues failed. The department had committed a continuing trespass by constructing a raised area by moving the farmyard muck heap, spreading it and covering it in a metre of topsoil. F had not consented to the construction of the raised area. The appeal of F and H failed except on that issue.


The figure awarded by the judge of £250 per year for temporary trespass consisting of the rubbish pit should not be disturbed, nor should the figure of £3,500 for burying the ashes of other owners' animals. The sum of £1,000 should be awarded in respect of the raised area. The damage suffered in respect of the muck heap was as a result of the delay by the department in recognising its liability to pay compensation. That was properly compensated for by a generous rate of interest on the compensation.


Judgment accordingly.






CRIMINAL


Admissibility - attempts - murder - previous convictions - sentence length - probability that another person committed the offence

R v Douglas John Gadsby: CA (Crim Div) (Lord Justice Thomas, Mr Justice Silber, recorder of Cardiff): 13 December 2005


The appellant [G] appealed against his conviction for attempted murder of his wife and against his sentence of 14 years' imprisonment. As she went to bed one evening, G's wife had discovered underneath her bed a timer and hotplate on which two bottles of petrol were being heated. The device was potentially lethal, as a spark from the hotplate thermostat could have ignited the fumes from the petrol. There was no suggestion that anyone had broken into the house and there was evidence that G had bought a hotplate eight days earlier.


In response to police questions, G had given the names of two people that he thought might have been responsible for placing the device, including the name of a man with whom his wife had been having an extramarital relationship. He also provided the names of persons with keys to the house, one of whom was that same man; the other was his sister [L], who had been in the house that day to do some cleaning, but G did not allege that she might have been responsible.


G was accused of placing the device and the issue at trial was whether the Crown had proved that he was the offender. At trial, G applied to adduce evidence that L had a previous conviction for arson. The judge rejected that application on the basis that the evidence was not relevant. G argued that the trial judge had wrongly refused to admit evidence of L's previous conviction, and that it was relevant as it would have rendered more probable the fact that L had committed the offence by reason of her propensity, even though it was not necessary for that to be proved; and in relation to the sentence imposed, he had not been treated well by his wife, he had not acted for any financial gain or to replace his wife in favour of a lover, and no injury or damage had been caused.


Stuart Rafferty (instructed by the Crown Prosecution Service) for the Crown; Rex Tedd QC for the appellant.


Held, as the issue was whether G had been the person who had placed the device under his wife's bed, evidence would be admissible if it was capable of increasing or diminishing the probability of facts indicating that some other person had done it. Thus, evidence that showed that another person had both the opportunity of, or the motive for, placing the device under the bed was clearly relevant, and evidence of the persons who had keys to the house had correctly been admitted. If, in addition to the keys, that person had propensity or motive, then evidence relevant to those facts would become admissible.


However, the circumstances relating to L's previous conviction did not show a propensity to commit the crime with which G had been charged. The offence, which had occurred when she was a teenager, more than 20 years earlier, was that she had set fire to a box of toys in her bedroom after an argument with her mother, R v Randall [Edward Peter] [2003] UKHL 69, [2004] 1 WLR 56 considered. The judge had been correct to exclude the evidence and there was no basis for the Court of Appeal to admit


it under section 23(2) of the Criminal Appeal Act 1968. G had chosen a method of attempting to kill his wife where, if the petrol had exploded, death would have been highly likely. The offence had been premeditated and had been carefully planned over a period of days. Although no further aggravating features had been present, in all the circumstances a sentence of 14 years, even though at the top end of the scale, was not manifestly excessive, R v Ellis (1995) 16 Cr App R (S) 773 applied.


Appeals dismissed.





HUMAN RIGHTS


Armed conflict - human rights - Iraq - occupation - right to life - territorial application - torture

R (on the application of Mazin Mumaa Galteh Al-Skeini & ors) v Secretary of State for Defence: CA (Civ Div) (Lords Justice Brooke (Vice-President), Sedley, Richards): 21 December 2005


The first five claimants (C) appealed against the declaration ([2004] EWHC 2911 (QB), [2004] 2 WLR 1401) that the European Convention on Human Rights and the Human Rights Act 1998 did not apply to the circumstances of their case and the defendant secretary of state cross-appealed against the declaration of the same court that the Act applied to the circumstances of the sixth claimant (M) and that the UK's procedural duties under articles 2 and 3 of the convention had been violated.


The six claims had been brought by the families of Iraqi civilians who had been killed in Basra while the UK was an occupying power. C and M had sought judicial review of the secretary of state's refusal to conduct inquiries into the deaths.


The Divisional Court found that the death of M's relative in the custody of British forces in Iraq came within the scope of the convention and of the Act as falling within the jurisdiction of the UK, and that there had been a breach of the procedural investigative obligation arising under articles 2 and 3 of the convention. The court further found that C's claims, arising out of shootings of Iraqi citizens by British forces in the field, failed on the ground that those shootings occurred outside the jurisdiction of the UK and thus outside the scope of the convention and the Act. The issues on appeal were whether the Act applied to the activities of British troops in Iraq at the material time, whether any of the claimants were entitled to the protection of the convention and, if so, whether their convention rights had been violated. C submitted that the convention and the Act applied to each of their cases. The secretary of state accepted the court's declaration that the convention applied in M's case but submitted that the Act did not apply and that the UK had not violated its procedural duties under articles 2 and 3 of the convention in relation to M.


Rabinder Singh QC, Michael Fordham, Shaheed Fatima, Christine Chinkin (instructed by Public Interest Lawyers) for the appellants; Christopher Greenwood QC, Philip Sales, Cecilia Ivimy (instructed by the Treasury Solicitor) for the respondent.


Held: (Lord Justice Sedley dissenting) Although it was accepted that the UK was an occupying power within the meaning of article 42 of the Hague Regulations and the Fourth Geneva Convention, it was impossible to hold that the UK was in effective control of Basra for the purposes of the human rights convention jurisprudence at the material time. If it had been, it would have been obliged to secure to everyone in Basra the rights and freedoms guaranteed by the convention, Bankovic v Belgium (2001) 11 BHRC 435 applied. The UK had no executive, legislative or judicial authority in Basra, other than the limited authority given to its military forces, and as an occupying power was bound to respect the laws in force in Iraq unless absolutely prevented. The convention did not apply to C's cases.


If the court had found that the UK had been under a positive obligation imposed by articles 1 and 2 of the convention, it would have been under an obligation to comply with international standards in relation to the investigations required of a contracting state when its armed forces or its police were involved in the death of a civilian within its own territory.


The territorial ambit of the Act was co-extensive with that of article 1 of the convention. The Act had territorial effect in those cases where a public authority was found to have exercised extra-territorial jurisdiction on the application of state agent authority principles. Accordingly, the 1998 Act applied to M's case, R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2005] 3 WLR 837 and R (on the application of B) v Secretary of State for the Foreign and Commonwealth Office [2004] EWCA Civ 1344, [2005] QB 643 applied.


The instant court had been provided with much more evidence than the Divisional Court as to whether the UK was in breach of its procedural obligations in relation to the investigation of M's death, and courts martial proceedings were now pending. In those circumstances, it would be premature to give a substantive answer to whether the UK had violated articles 2 and 3, and the matter should be remitted to the Administrative Court, with the recommendation that all further proceedings on that issue be stayed until after the conclusion or other disposal of the courts martial proceedings.


Appeal dismissed, cross-appeal dismissed.





SOCIAL SECURITY


Attendance allowance - disabled persons - assistance to carry hot drinks - requirement for attention of a close and personal character - social security benefits

Batty v Secretary of State for Work and Pensions: CA (Civ Div) (Lords Justice Mummery, Latham, Gage): 13 December 2005


The appellant secretary of state appealed against the decision of the social security commissioner that the respondent (B) was entitled to attendance allowance under section 64 of the Social Security Contributions and Benefits Act 1992.


B suffered from severe arthritis and hypertension.


The secretary of state refused the allowance on the basis that B did not satisfy section 64(2)(a) of the Act as she did not require 'from another person... frequent attention throughout the day in connection with bodily functions'.


The commissioner held that B needed help in order to get hot drinks to a position where she could drink them and such help was reasonably required on a number of occasions throughout each day. While B could make drinks, she could not carry them. The secretary of state argued that the commissioner had erred in holding that B's requirement for help in carrying hot drinks, as opposed to drinking them, was capable of constituting attention in connection with her bodily functions.


Martin Chamberlain (instructed by the Solicitor, Department of Work and Pensions) for the appellant; Daniel Kolinsky (instructed by Davies Gore Lomax) for the respondent.


Held, the commissioner had erred in holding that B's requirement for help carrying hot drinks, as opposed to drinking them, was capable of constituting attention in connection with her bodily functions. The authorities indicated that the wording of the phrase in section 64(2)(a) was to be read as a whole. The words 'attention' and 'functions' gave colour to the phrase and denoted special or personal requirements that went beyond ordinary personal assistance. The word 'attention' required more than a personal service but meant service of a close and intimate nature.


The words 'bodily functions' had a narrower meaning than, for example, 'bodily needs' and referred to the normal physiological functions that a fit person performed for himself, Woodling v Secretary of State for Social Services [1984] 1 WLR 348, Cockburn v Chief Adjudication Officer [1997] 1 WLR 799, R v National Insurance Commissioners, ex parte Secretary of State for Social Security [1981] 1 WLR 1017 and Mallinson v Secretary of State for Social Security [1994] 2 All ER 296 considered. In the instant case, the court was not persuaded that the commissioner had found or had been entitled to find any more than that B's disability meant that she could not carry drinks. The assistance required was just transportation of drinks and had none of the characteristics of attention of a close and personal character. In those circumstances the decision could not stand and the matter was remitted back for a re-hearing.


Appeal allowed.