COSTS

Grossly exaggerated damages claim for personal injuries - damages awarded marginally beating defendant's part 36 payment in - party attempting to mislead court not entitled costs of action

Painting v University of Oxford: CA (Lords Justice Longmore and Maurice Kay): 3 February 2005



The claimant, a member of a university's administrative staff, fell while attempting to use a ladder to reach a book in the university library and suffered injuries.


On her claim for damages, the university admitted liability subject to 20% contributory negligence, for damages to be assessed. She claimed £400,000, after deducting £100,000 for contributory negligence, on the basis she would not be able to lead a normal life or work for a long time by reason of her debilitating long-term back pain.


The university maintained that she was able to work after six months, made a part 36 payment into court of £10,000 and contested the quantum. After a two-day hearing, the judge found that the claim of £400,000 had been grossly exaggerated, awarded damages £22,342.28 (being 80% of £31,664.73) and awarded the claimant the costs of the action on the basis that the damages awarded had beaten the part 36 payment in. The university appealed against the costs order.


Julian Waters (instructed by Berrymans Lace Mawer, London) for the university; Gabriel Farmer (instructed by Thompsons, Bristol) for the claimant.


Held, allowing the appeal, that since the claimant had made a grossly exaggerated claim without making a part 36 offer in response to the university's offer, leaving the university to fight the case, and since the damages awarded was only 6% of the quantum claimed by the claimant, the real winner of the case was the university; and that the judge, in the circumstances, had applied the wrong principle in awarding the costs of the action to the claimant.






CRIMINAL


Sexual assault - defendant asking complainant for sexual intercourse then grabbing her clothes - words irrelevant in determining whether 'nature' of 'touching' 'sexual' but relevant in determining whether circumstances or defendant's purpose rendering touching 'sexual'

R v H: CA (Lord Woolf, Chief Justice, Mr Justice Davis and Mr Justice Field): 1 February 2005


The defendant was charged with sexual assault, contrary to section 3 of the Sexual Offences Act 2003, the allegation being that he had approached the complainant late at night, said 'Do you fancy a shag?', grabbed her tracksuit bottoms in the area of her right side pocket and attempted to pull her towards him.


At trial, the judge rejected the defendant's argument that the grabbing of the tracksuit bottoms did not amount to 'touching' for the purposes of section 3. The judge also ruled that what had occurred could be regarded by a reasonable person as 'sexual' within the meaning of section 78(b) of the Act, since there were clearly circumstances, including the words alleged to have been spoken beforehand, which could make what had occurred sexual. The defendant was convicted. He appealed.


Ian West (assigned by the Registrar of Criminal Appeals) for the defendant; Christine Egerton (instructed by Crown Prosecution Service, Cleveland) for the Crown.


Held, dismissing the appeal, that a person 'touched' another person for the purposes of an offence of sexual assault if he touched the clothes which that person was wearing; that, in considering whether the touching was 'sexual' within the meaning of section 78(b) of the Act, it was necessary to consider, first, whether the touching, because of its nature, might be sexual and, secondly, whether the touching, because of its circumstances or the defendant's purpose in relation to it, was sexual; that the 'nature' of the touching referred to the actual touching that took place and, therefore, in considering whether the touching, because of its nature, might be sexual, the circumstances before or after the touching or the purpose of the defendant in relation to the touching should not be taken into account; that, accordingly, the judge had erred in not adopting a two-stage approach to section 78(b); but that, looking at the case as a whole, the conviction was not unsafe. (WLR)




Defendant aged 15 charged with unlawful sexual intercourse with girl aged between 13 and 16 - offence applying only to males - no breach of convention rights

E v Director of Public Prosecutions: QBD (Lord Justice Pill and Mrs Justice Cox): 1 February 2005


The defendant, a 15-year-old boy, was convicted of unlawful sexual intercourse with a girl not under the age of 13 but under the age of 16, contrary to section 6(1) of the Sexual Offences Act 1956.


The defendant appealed by way of case stated, on the ground that the offence of unlawful sexual intercourse when concerning two consenting people both under the age of 16 automatically turned one party into a victim and the other into an offender, discriminating solely on the ground of gender since only the male could be convicted under the section, and so breached his rights under articles 6, 8 and 14 of the European Convention on Human Rights.


Gareth Roberts (instructed by Arora Lodhi Heath, London) for the defendant; Matthew Dunford (instructed by Crown Prosecution Service, Colwyn Bay) for the prosecution.


Held, dismissing the appeal, that there was no merit in the submission that the procedure was a breach of article 6 of the convention, which was not concerned with the substance of an offence except in so far as it might affect trial procedures; that there had been no breach of article 8 and, even if there had been a prima facie breach, there was a need to deter boys and to protect girls from the risk of pregnancy, a risk which did not apply to boys; and that since there had been no breaches of articles 6 or 8, article 14 was not brought into effect.






PLANNING


Proposed development interfering with right to light to adjacent property - development unconnected with original planning purpose for which local authority predecessor in title had acquired land - easement not overriden

Midtown Ltd v City of London Real Property Co Ltd; Joseph and others v City of London Real Property Co Ltd: ChD (Mr Justice Peter Smith): 20 January 2005


The owner and leaseholders of a property brought proceedings against the developer of a site adjoining the property, claiming an injunction to restrain the developer from erecting a building which interfered with their right to light, or damages in lieu.


Part of the site had been acquired by a local authority for particular planning purposes which had been fulfilled many years before the developer acquired the land. The developer submitted that it had the right to erect the building even if it interfered with the claimants' right to light, relying on, among other things, section 237 of the Town and Country Planning Act 1990 which allowed local authorities and their successors in title to override easements and other rights belonging to owners of adjoining properties.


John McGhee QC and Jonathan Karas (instructed by Wragge & Co, Birmingham) for the claimants; Paul Morgan QC and David Forsdick (instructed by Nabarro Nathanson, London) for the developer.


Held, allowing the claims in part, that in order to rely on section 237 to override the easement, the local authority or its successor had to show that the proposed development was related to the planning purposes for which the land had originally been acquired; and that, since there was no connection between the proposed redevelopment and the original acquisition purpose which had been fulfilled, the defendant was not able to rely upon section 237 of the 1990 Act to override the easements of light.






SOLICITOR


Conflict of duty - solicitor acting for both property developer and purchaser - purchaser known to solicitor as convicted fraudster and bankrupt - solicitor liable in damages to developer for non-disclosure when purchaser defaulting

Hilton v Barker Booth & Eastwood (a firm): HL (Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Brown of Eaton-under-Heywood): 3 February 2005


The claimant, a property developer, contracted with the purchaser that he would acquire a site, develop it into six flats and sell the developed property on to the purchaser. The defendant, a firm of solicitors, acted for both the claimant and the purchaser (see [2005] Gazette, 10 February, 4).


The solicitors knew, because they had acted for him in the proceedings, that the purchaser had recently been released from prison after pleading guilty to offences of participating in the management of a company while an undischarged bankrupt, fraudulent trading and obtaining credit while an undischarged bankrupt, but did not inform the claimant. The purchaser failed to complete and the claimant's business collapsed.


After failing to get redress from the purchaser, the claimant brought proceedings against the defendant firm. The judge found that it was in breach of its professional duty in acting for both the purchaser and the claimant, that the solicitor could not have passed on the facts about the purchaser's bankruptcy and convictions without a breach of professional duty to the purchaser, and that the breach of duty to the claimant lay in the firm continuing to act for him, not in failing to pass on the information. Therefore, the claimant was entitled to be placed in the position he would have been in if he had instructed an independent solicitor and, as it was not suggested that any such solicitor would have been aware of the purchaser's conviction, the breach of duty had caused no loss to the claimant. The Court of Appeal upheld his decision and the claimant appealed.


Timothy Dutton QC and Chloe Carpenter (instructed by John Budd & Co, Blackpool) for the claimant; Christopher Gibson QC and Ian Wood (instructed by James Chapman & Co, Manchester) for the defendant.


Held, allowing the appeal, that the defendant could not properly have acted for both vendor and purchaser on the transaction; that the solicitors' duty had been to inform the claimant, first, that they could not act for him and, second, that he should seek legal advice from other solicitors, starting afresh (and not relying on any advice that he might already have received from the defendant); that a bare refusal to act, without clear advice about going to new solicitors, would not have been sufficient to discharge the defendant's duty; that, in addition, the defendant's failure to disclose the facts about the purchaser's past to the claimant was a second and more serious breach of duty which had caused the claimant actionable loss; that, applying the principles stated in Moody v Cox and Hatt [1917]


2 Ch 71, if a solicitor put himself in a position of having two irreconcilable duties it was his own fault, and the fact that he had chosen to put himself in an impossible position did not exonerate him from liability to the party whose duty he failed to perform; and that, accordingly, the defendant was liable to the claimant in damages. (WLR)






TORT


Cause of action - invalidly appointed receivers assuming control of company's contracts - not constituting wrongful interference with contractual relations

OBG Ltd and another v Allan and others: CA (Lords Justice Peter Gibson, Mance and Carnwath): 9 February 2005


The third defendant had purported to appoint the first and second defendants as administrative receivers of the claimants, but following proceedings brought by the claimants, the appointment was declared to be invalid.


On the claimants' further claim, the judge held that in assuming control of the claimants' contracts and purporting to act on behalf of the first claimant the receivers had committed the tort of wrongful interference with contractual relations, and awarded a sum of damages. The defendants appealed.


Gregory Mitchell QC and Paul Greenwood (instructed by Reynolds Porter Chamberlain, London) for the defendants; Alan Steinfeld QC and Alistair Wyvill (instructed by Hammonds, Manchester) for the claimants.


Held, allowing the appeal, that although the tort of wrongful interference with contractual relations had been extended to include prevention of the due performance of a primary contractual obligation even though no secondary obligation to make monetary compensation came into existence, the tort should not be further extended to include circumstances where the alleged tortfeasor was not intending to prevent the performance of any primary obligation of the contract; that the intention to procure a breach, or the non-performance of an obligation, of a contract or a breach of duty which was an essential ingredient of the tort was lacking in a case such as the present, where the objection to the interference went only to who should be managing the contractual rights of one party; and that, although the receivers did intend to interfere with the claimants' business, that did not amount to an interference with contractual relations in any relevant sense.