Criminal Employment Housing Insolvency Planning Practice


Criminal



Inflicting grievous bodily harm - injury resulting from tackle during football match - conviction unsafe



R v Barnes: CA (Lord Woolf Lord Chief Justice, Mr Justice Cresswell and Mr Justice Simon): 21 December 2004



The defendant injured another player during the course of an amateur football match. He was charged with inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861, the allegation being that the injury was the result of a late, unnecessary, reckless and high crushing tackle. The defendant claimed that the tackle was a fair, if hard, challenge and that any injury caused was accidental. He was convicted. He appealed.


Danny Robinson (assigned by Registrar of Criminal Appeals) for the defendant; Allister Walker (instructed by Crown Prosecution Service, Canterbury) for the Crown.


Held, allowing the appeal, that criminal proceedings should only be brought against a player who injured another player in the course of a sporting event if his conduct was sufficiently grave to be properly categorised as criminal; that, if criminal proceedings were justified, the consent of the victim to the possibility of injury would only be a defence if what had occurred had not gone beyond what a player could reasonably be regarded as having accepted by taking part in the sport; that in highly competitive sports, conduct outside the rules could be expected to occur in the heat of the moment and, even if it justified a warning or a sending off, it still might not reach the threshold required for it to be criminal; that whether conduct reached that required threshold would depend on all the circumstances, including the type of sport, the level at which it was played, the nature of the act, the degree of force used, the extent of the risk of injury and the defendant's state of mind; that in borderline cases the jury would need to ask themselves, among other questions, whether the contact was so obviously late and/or violent that it could not be regarded as an instinctive reaction, error or misjudgement in the heat of the game; and that, on the facts, the summing-up in the defendant's case was inadequate and, accordingly, the conviction was unsafe (WLR).



Back to top



Employment



Employees covenanting not to solicit business from employer's 'customers and contracts' within 12 months of leaving employment - employees opening rival business immediately after leaving employment - covenant ambiguous and unenforceable



The Townends Group Ltd v Cobb and others: ChD (Mr Michael Briggs QC, sitting as a deputy High Court judge): 26 November 2004


Under an employment contract with the claimant, an estate agents company in Surrey, two employees covenanted not to solicit business from any of the claimant's 'customers or contracts' for 12 months after leaving the employment. Both employees, immediately after leaving their employment, commenced their own estate agency business in a different part of Surrey in the name of the third defendant company which they had acquired. The claimant applied for an order to restrain the defendants from soliciting business from its clients.


Carl Troman (instructed by Coole & Haddock, Worthing) for the claimant; Nicola Rushton (instructed by Berrymans Lace Mawer, London) for the defendants.


Held, refusing the application, that the information relating to the estate agent's customers and contracts was not a trade secret needing to be protected by injunction; that the covenant restricting the employees from soliciting the claimant's clients after leaving the employment was unenforceable because it failed to define whether the clients to which it related were those in existence at the commencement of the defendants' employment, the termination of their employment or when the complaint was made by the claimant; and that a party seeking to enforce a covenant could not ask the court to help it to save the covenant by arbitrarily importing an implied term to enforce an ambiguous term to protect its business.



Back to top



Housing



Homeless person deemed not in priority need - review of original decision finding no deficiency - reviewer's role



Hall v London Borough of Wandsworth; Carter v London Borough of Wandsworth: CA (Lords Justice Waller, Carnwath and Sir William Aldous): 17 December 2004


Two applicants presenting as homeless were deemed not to be in priority need. Their decisions were reviewed and the reviewer upheld both decisions. The applicants raised separate appeals that concerned the obligation on a reviewer under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI No 1999/71). The appeals were refused. The applicants appealed.


Jonathan Manning (instructed by Flack & Co, London) for Mr Hall; Wayne Beglan (instructed by DMH, Brighton) for the council; David Carter (instructed by Flack & Co, London) for Ms Carter; Wayne Beglan (instructed by DMH, Brighton) for the council.


Held, allowing the appeals and remitting the cases to the council for reconsideration, that an officer reviewing a decision that an applicant for accommodation was not in priority need should treat regulation 8(2) as applicable, not merely when he found some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considered that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker; and that in such a case, if he intended to confirm the decision, he must give notice of the grounds on which he intended to do so, and provide an opportunity for written and (if requested) oral representation.



Back to top



Insolvency



Debtor applying to set aside statutory demand for debt - debtor failing to argue interest point on hearing of application - not entitled to argue interest point on hearing of bankruptcy petition



Adams v Mason Bullock (a firm): ChD (Mr Bernard Livesey, sitting as a deputy High Court judge): 17 December 2004


The debtor applied to set aside a statutory demand, representing unpaid invoices and interest, served on him by the creditor firm. Although he had filed statements in which he raised the argument that the creditor was not entitled to charge interest on the invoices, he did not argue that point at the hearing for the application and the point was not adjudicated upon.



The creditor then presented the bankruptcy petition and the debt, but not the interest, was paid. At the hearing of the petition, the district judge, following Turner v Royal Bank of Scotland plc [2002] BPIR 683, held that the interest point had been adjudicated on and that it was not open to the debtor to revisit the argument.



The debtor appealed on the ground, among other things, that section 271 of the Insolvency Act 1986 and rule 6.25 of the Insolvency Rules 1986 (SI 1986/1925), gave the court a discretion to look into the matter which ordinarily ought to be exercised in favour of the debtor in circumstances such as the instant.


Sebastian Prentis (instructed by EMW Law, Northampton) for the debtor; David Nicholls (instructed by Shoosmiths, Reading) for the creditor.


Held, dismissing the appeal, that where there had been no hearing at which the debtor had the opportunity to advance arguments as to the validity of the debt, the discretion given by section 271 and rule 6.25 would usually result in the non-application of the principle in Turner; that, however, where there had been a hearing on the merits, at which the point could have been advanced but was not, the discretion would ordinarily be exercised against the debtor; and that the position was stronger where, as was the case, the point was taken in the debtor's statements but was not argued at the hearing, since he would ordinarily be regarded as having abandoned the point.



Back to top



Planning



Council granted interim injunction to prevent anticipated breach of planning control - gipsies occupying mobile homes on own land in breach of interim injunction and planning control - judge wrong to suspend final injunction granted restraining use of land for residential purposes until planning application determined



Mid Bedfordshire District Council v Brown and others: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Mummery and Jonathan Parker): 20 December 2004


The council obtained an interim injunction under section 187B of the Town and Country Planning Act 1990 (as inserted by section 3 of the Planning and Compensation Act 1991) to restrain the use of agricultural land for residential purposes anticipating unlawful use.


In breach of the injunction, the defendants moved their caravans onto the land, which they owned, over a bank holiday.


They subsequently put in an application for planning permission. The council applied for a final injunction prohibiting the change of use in breach of planning control. The judge granted the order but suspended it pending the determination of the planning application. The council appealed.


David Elvin QC and James Maurici (instructed by Mills & Reeve, Cambridge) for the council; Patrick Hamlin (instructed by Paul Gromett & Co, London) for the defendants.


Held, allowing the appeal, that when balancing the competing factors to be taken into account on an application for a final injunction to remove from agricultural land defendants who had moved onto their own land and were occupying it in breach of an interim injunction and of planning control, proper account was to be taken of the vital role of the court in upholding the principle that court orders were to be obeyed; and that that overarching consideration far outweighed the factors favouring suspension of the injunction.



Back to top



Practice



Costs order made before Civil Procedure Rules coming into effect - power to vary or revoke any order - not extending to order made before rules coming into effect



DEG-Deutsche Investitions-und Entwicklungsgesellschaft mbH v Koshy and others (No 4): ChD (Mr Justice Hart): 13 December 2004


The first defendant applied to discharge a Mareva injunction which had been made against him on the claimant's application. In March 1998, the application to discharge was dismissed and an order was made against the first defendant for the significant costs of the application (the costs order).


Subsequently, the claimant's substantive claim against the first defendant was dismissed, so the injunction ceased to have effect. The first defendant applied to set aside the costs order on the basis that rule 3.1(7) of the Civil Procedure Rules 1998 (CPR) gave the court jurisdiction to vary or revoke any order made, including orders made before the CPR came into effect.


Andrew Thompson (instructed by CMS Cameron McKenna, London) for the claimant; the first defendant did not appear and was not represented.


Held, dismissing the application, that on a true construction, CPR rule 3.1(7) was not intended to have a retrospective effect and did not apply to orders made before the CPR came into effect; and, accordingly, CPR rule 3.1(7) could not be construed so as to apply to the order for costs, since that order had been made before the rules came into effect.



Justices making liability order for non-domestic rates in absence of ratepayer and legal representative - ratepayer seeking order for rehearing - no general common law power for justices to rehear civil case



R (Mathialagan) v London Borough of Southwark and another: CA (Lords Justice Waller, Carnwath and Sir William Aldous): 13 December 2004


The magistrates' court made liability orders against the applicant in respect of non-domestic rates for two properties. The orders were made in the absence of the applicant and his legal representative, who had notice of the hearing date but mistakenly came to court on the wrong day. The applicant sought an order requiring the justices to reopen the matter. The judge refused the application. The applicant appealed.


Philip Engelman (instructed by Anthony Ogunfeibo & Co, London) for the applicant; Robert Bowker (instructed by Deborah Holmes, Southwark Borough Council) for the council; the justices did not appear and were not represented.


Held, dismissing the appeal, that the powers of justices were statutory, although some limited common law powers were recognized; that the Magistrates' Courts Act 1980 only gave express powers to rehear cases in the criminal jurisdiction; that Parliament had intentionally not given a general power for justices to reopen and rehear a civil case; and that it was not open to the court to hold that some such general power existed at common law.



Back to top