Contract Criminal Data Protection Practice


Contract



Standard form partnership licence agreement - reductions in allowances paid by oil company to service station licensees - company having discretion to reduce amounts payable

Addison and others v Esso Petroleum Co Ltd: CA (Lords Justice Ward, Tuckey and Neuberger): 12 November 2004



Group litigation was commenced by some 1,000 retail licensees carrying on business from service stations owned by a major oil company. All licensees had negotiated a standard form partnership licence agreement with the oil company. During 1996, the oil company, on three occasions, reduced the amounts of the operating costs allowance that it paid to the licensees under the terms of the agreement.


The judge, rejecting the licensees' case that the terms of the agreement did not permit such reductions, concluded that, properly construed, the agreement gave the company a discretion to make the adjustments. The licensees appealed.


John Tracy Kelly, solicitor-advocate (of Ferdinand Kelly, Birmingham) for some of the licensees; Howard Milton, a licensee, in person; Mark Hapgood QC and David Cavender (instructed by Irwin Mitchell, London) for the oil company.


Held, dismissing the appeal, that the issues concerned the construction of the standard terms of the licence agreements and the oil company's entitlement to adjust the amounts of margins, fees and allowances; that the judge's conclusion that, unless acting arbitrarily, capriciously, dishonestly or irrationally, the oil company had a discretion to reduce amounts payable was one of fact that could not be upset on appeal; and that, notwithstanding the absence of any specification as to how the operating costs allowance was to be determined, the company had not acted improperly and had thus been entitled to make successive reductions in the allowances.



Criminal



Release of prisoner on licence - recall to prison for breach of licence conditions - Parole Board entitled to confirm recall on ground of risk of commission of minor non-imprisonable offences

R (Morecock) v Parole Board: QBD (Mr Justice Keith): 8 November 2004


The claimant was released on licence under supervision after serving two-thirds of a 12-year prison sentence for burglary with intent to rape. Conditions of the licence required that he be of good behaviour, not commit any offence or take any action that would jeopardise the objectives of his supervision, and comply with the requirements of supervision. The secretary of state revoked the licence and recalled the claimant to prison for breach of conditions in failing to comply with instructions not to contact his ex-partner and on the basis of allegations that he had assaulted and raped her. Those allegations were subsequently withdrawn, but the Parole Board confirmed the recall on the different ground that he had been driving while disqualified and without insurance, and there was an unacceptable risk of further offending. The claimant sought judicial review.


Abigail Nixon (instructed by Atter Mackenzie & Co, Evesham) for the claimant; Daniel Stilitz (instructed by Treasury Solicitor) for the board.


Held, dismissing the claim, that although the commission of driving offences had triggered the board's decision, the sentence he was serving was for his original offences and did not constitute imprisonment for an offence for which a prison sentence could not be passed; that the board had not therefore taken a wrong approach; that to deny the claimant release on the basis of a well-founded fear that he might commit non-imprisonable driving offences was not irrational; and that the board, being required to consider each case on the evidence before it, was not obliged to release a prisoner when the secretary of state's original reasons for recall no longer stood if it considered his release inappropriate for different reasons.



Pursuing course of conduct amounting to harassment - meaning of 'course of conduct' - requirement for individual incidents to be connected in type and context

R v Patel (Nitin): CA (Lord Justice Maurice Kay, Mr Justice McCombe and Mr Justice David Clarke): 11 November 2004


The defendant was charged with an offence, contrary to section 4 of the Protection from Harassment Act 1997, of putting a person in fear of violence by harassment. The complainant, the wife of the defendant, described numerous incidents when the defendant had allegedly slapped her and pressed his hands to her throat. The defendant denied that any of the incidents had happened.


The judge, in summing up, directed the jury that it must be satisfied that there was a course of conduct that involved conduct on at least two occasions. The jury acquitted the defendant of the section 4 offence but convicted him of the lesser offence under section 2 of pursuing a course of conduct amounting to harassment. The defendant appealed against conviction on the grounds that the judge's direction had been inadequate.


Robert Kay (assigned by the Registrar of Criminal Appeals) for the defendant; Alex Chalk (instructed by the Crown Prosecution Service, Croydon) for the Crown.


Held, allowing the appeal, that where an allegation of harassment was based on incidents few in number and widely spaced in time, it was necessary for the trial judge to direct the jury that, before convicting a defendant, it had to be sure that the incidents were so connected in type and in context as to justify the conclusion that they amounted to a course of conduct; and that, since there was a risk that the jury had convicted by reference to two or three incidents separated in time and place and to some extent in context, the verdict was unsafe.



Data Protection



Data subject making access request for documents from data controller - request refused on ground that documents not containing personal data - data subject bringing substantive proceedings for breach of data protection principles - entitled to seek disclosure of same documents under CPR part 31

Johnson v The Medical Defence Union Ltd: ChD (Mr Justice Laddie): 9 November 2004


The claimant, as data subject, made an 'access request' of the defendant, as data controller, under section 7 of the Data Protection Act 1998, which allowed him to find out whether personal data about him was being processed by the defendant and if so, how.


The claimant subsequently commenced proceedings against the defendant seeking, among other things, damages for breach of the data protection principles under sections 13 and 14 of the 1998 Act, and an order under section 7(9) requiring the defendant to comply with his earlier access request.


On an earlier interim application, the court determined that the defendant had complied with its obligations under section 7 and that no further documents had to be supplied pursuant to the access request. Pursuant to section 15(2), the judge, in determining the application, had inspected the documents in question, but did not disclose them to the claimant. The claimant subsequently applied for specific disclosure of the same documents under part 31 of the Civil Procedure Rules 1998 (CPR).


Ashley Roughton (instructed by Charles Russell, Guildford) for the claimant; Jacqueline Reid (instructed by Fladgate Fielder, London) for the defendant.


Held, that section 15(2) did not contain a general prohibition on a data subject obtaining disclosure in an action where he claimed relief for breaches of the data protection principles under sections 13 and 14 of the 1998 Act; that the fact that the court had found that the documents held by the defendant were not, and did not, contain personal data relating to the claimant did not preclude the claimant from seeking disclosure of the same documents under CPR part 31 in the course of proceedings under sections 13 and 14 of the Act; that, accordingly, in principle, it was open to the claimant to seek disclosure under the CPR, but the question of what, if any, order for disclosure should be made would be decided at a later date.



Practice



Discovery - legal advice privilege - communications relating to presentation of material to inquiry made in relevant legal context and therefore privileged

Three Rivers District Council and others v Governor and Company of the Bank of England (No 6): HL (Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lords Carswell and Brown of Eaton-under-Heywood): 11 November 2004


The claimants, liquidators and creditors of a bank (BCCI), claimed against the Bank of England for misfeasance in public office in its supervision of BCCI prior to its collapse. They sought discovery of communications between the bank's inquiry unit and its solicitors relating to an inquiry set up to inquire into the bank's supervision. The bank claimed legal advice privilege.



The judge held that the bank was entitled to privilege only in respect of communications for the purpose of seeking or obtaining advice as to its legal rights and obligations, rather than commun-ications regarding presentation of its evidence to the inquiry so as to minimise criticism. The Court of Appeal [2004] EWCA Civ 218; [2004] Gazette, 18 March, 36; [2004] QB 916, dismissed the bank's appeal. The bank appealed.



Jonathan Sumption QC, Bankim Thanki QC and Ben Valentin (instructed by Freshfields Bruckhaus Deringer, London) for the bank; Gordon Pollock QC, Barry Isaacs and Nathan Pillow (instructed by Lovells, London) for the claimants; Jonathan Crow (instructed by the Treasury Solicitor) for the Attorney-General, intervening; Charles Hollander QC (instructed by Sharpe Pritchard, London) for the Bar Council, intervening; Sir Sydney Kentridge QC and Tom Adam (instructed by Linklaters, London) for the Law Society, intervening.



Held, allowing the appeal, that advice given in a 'relevant legal context' (Balabel v Air India [1988] Ch 317, 330, 331) attracted legal advice privilege; that advice and assistance regarding the presentation of a case to an inquiry given to someone whose conduct might be criticised by it would be given in a relevant legal context; and that, accordingly, communications between the bank's inquiry unit and its solicitors for that purpose were privileged. (WLR)



See Practice points



Court determining liability on cross-claims and adjourning quantum and other issues - winning party abandoning illegality plea - not abuse of process for losing party to plead same illegality and no issue estoppel

BIM Kemi AB v Blackburn Chemicals Ltd: CA (Lords Justice Kennedy, May and Longmore): 10 November 2004


An English company and a Swedish company agreed to source from each other their respective products to market them in countries respectively defined and reserved for each of them. Disputes arose between them and, in an action on cross-claims, the judge held the English company to be in breach of contract.


On the English company's appeal, the Court of Appeal [2003] EWCA Civ 106, held that the Swedish company was in breach and ordered that the quantum of damages and any other unresolved issues be resolved in a later trial. The English company, having thus secured judgment on liability, thereupon abandoned its plea that the contract was illegal for breach of article 81 of the EC Treaty. The Swedish company was then given permission to plead that same illegality as a defence on the remaining issues.


The English company applied to strike out that plea as an abuse of process, on the basis that the Court of Appeal order raised an issue estoppel. Mr Justice Cooke [2004] EWHC 166(Comm) refused the application. The English company appealed.


Alastair Wilson QC and Jonathan DC Turner (instructed by Taylors, Blackburn) for the English company; Andrew Onslow QC and Mark Hoskins (instructed by Jeffrey Green Russell, London) for the Swedish company.


Held, dismissing the appeal, that the judgment of the Court of Appeal was not to be regarded as finally determining in favour of the English company all issues that were, or could have been, raised so as to preclude the Swedish company from relying on the illegality plea; that the question whether the agreement was void under article 81 of the EC Treaty was an issue that affected the respective claims of both parties and so both were entitled to rely on it; and that, accordingly, it was not an abuse of process for the Swedish company to plead illegality at that stage.