CONSTITUTIONAL
Statute providing special procedure for passing legislation without assent of House of Lords - procedure used to pass statute amending enabling Act so as to enlarge scope of special procedure - amending statute and statutes enacted under enlarged procedure valid
R (Jackson and others) v Attorney-General: CA (Lord Woolf, Lord Chief Justice, Lord Phillips of Worth Matravers, Master of the Rolls, and Lord Justice May): 16 February 2005
The Hunting Act 2004 became an Act of Parliament without the assent of the House of Lords, pursuant to the provisions of the Parliament Act 1911 as amended by the Parliament Act 1949, which had reduced the period that had to elapse before the consent of the Lords could be dispensed with.
The claimants, contending that the 1949 Act was invalid because the provisions of the 1911 Act had been relied on to enact it, whereas the 1911 Act could only be amended with the consent of the House of Lords, sought judicial review by way of declarations that the 1949 Act was not an Act of Parliament and was consequently of no legal effect and that, accordingly, the Hunting Act 2004 was not an Act of Parliament and was of no legal effect. The Queen's Bench Divisional Court dismissed the claim. The claimants appealed.
Sir Sydney Kentridge QC, Richard Lissack QC, Martin Chamberlain and Marcus Haywood (instructed by Allen & Overy, London) for the claimants; Lord Goldsmith QC, Philip Sales and Clive Lewis (instructed by the Treasury Solicitor) for the Attorney-General; David Pannick QC and Gordon Nardell (instructed by Collyer-Bristow, London) for the League Against Cruel Sports, as an interested party.
Held, dismissing the appeal, that although it was unusual, and in modern times probably unprecedented, for the courts to rule on the validity of legislation that had received the royal assent, it was appropriate in the present case since the 1911 Act expressly contemplated judicial scrutiny of its effect and the courts were seeking to assist Parliament and the public by providing necessary clarification of the legal position; that there were restrictions on the powers to legislate under the 1911 Act, and in particular that Act could not be used directly or indirectly through an amendment to abolish the House of Lords or indefinitely to extend the life of Parliament; but that the 1911 Act could be modified by legislation made under that Act if the amendment were within its scope; that the amendment contained in the 1949 Act, which was relatively modest and left the relationship between the House of Lords and the House of Commons substantially unchanged, was within the scope of the 1911 Act; that, in so far as there was any doubt about that, that was resolved by the fact that, in 1911, both the House of Lords and the House of Commons had plainly understood that the 1911 Act would be open to amendment in the manner adopted by the 1949 Act and by the fact that, for more than 50 years, Parliament, the Crown and the public had conducted themselves on the basis that the 1949 Act was valid; and that, accordingly, the 1949 Act was valid and, therefore, the Hunting Act 2004 was also valid. (WLR)
COSTS
Conditional fee agreements - success fees - appropriate level
Begum v Klarit: CA (Lords Justice Brooke, Latham and Neuberger): 15 February 2005
The claimant applied in the county court for an order for rectification of a declaration of trust in a property dispute with the defendant. The application was granted. The defendant's appeal was dismissed.
As to costs, the claimant advanced a claim for a success fee, arising out of a conditional fee agreement, of 100% for counsel and 70% for the solicitors, and she contended that one was effectively remunerated for cases one lost by those one won.
Bryan McGuire (instructed by Bell Lax Litigation, Sutton Coldfield) for the claimant; David Altaras (instructed by Exlex, Birmingham) for the defendant.
Held, that, on the particular facts, success had been almost a stone-cold certainty, and in such circumstances the negotiation of fees at the level advanced both discredited and devalued the arrangements for conditional fee agreements; and that an appropriate success fee in each case would be 15%.
CRIMINAL
Sentence - offender sentenced to detention and training order - no power to add extended sentence
R v B (Sentence: Detention and Training Order): CA (Lord Justice Hooper, Mr Justice Silber and Judge Paget): 14 February 2005
The offender, a youth, was convicted of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960. He was sentenced to two years' detention, comprising a six month detention and training order (DTO) and an extension period (of licence) of 18 months, pursuant to section 85 of the Powers of Criminal Court (Sentencing) Act 2000. The defendant appealed against the sentence on the ground that there was no power to impose a DTO together with an extended sentence.
John Lofthouse (assigned by the Registrar of Criminal Appeals) for the defendant; Joseph Anoom (Crown Prosecution Service, Chichester) for the Crown.
Held, allowing the appeal, that a DTO did not have any form of 'licence period' but instead a requirement under section 103 of the 2000 Act for 'supervision', which began when the offender was released from detention and ended when the term of the DTO ended; that there was no statutory provision permitting an extended sentence to be added on to a DTO, and regimes for prisoners and those subject to DTOs were meant to be different, as indicated by the use of differing provisions and different terminology for them in the 2000 Act, and the terms of section 103 of that Act; and that, accordingly, since the court had no power to add an extended sentence to the DTO, the extended sentence would be quashed and the six-month DTO upheld. (WLR)
Court of Appeal - fresh evidence showing that key prosecution witness lied at trial - appeal court entitled to conclude that on all facts of case verdict not unsafe
Dial and another v State of Trinidad and Tobago: PC (Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Carswell and Lord Brown of Eaton-under-Heywood): 14 February 2005
The defendants were convicted of murder and appealed. At the appeal hearing, fresh evidence was admitted including evidence that established that one of the main prosecution witnesses had lied about a crucial aspect of the case. The Court of Appeal of Trinidad and Tobago nevertheless concluded that the convictions were safe and dismissed the appeals. The defendants appealed to the Privy Council.
Sir Sydney Kentridge QC (instructed by Herbert Smith, London) for the first defendant; Keir Starmer QC and Henrietta Hill (instructed by Herbert Smith, London) for the second defendant; James Dingemans QC and Katherine Deal (instructed by Charles Russell, London) for the state.
Held, dismissing the appeals (Lord Steyn and Lord Hutton dissenting), that where fresh evidence established that a material prosecution witness had told a lie at trial, the question for the Court of Appeal was whether, having regard to all the evidence in the case, that realistically placed the defendant's guilt in reasonable doubt; that it could not be right to allow an appeal simply on the basis that the prosecution's main witness had later been shown to have told an outright lie; and that, on the evidence as a whole, the Court of Appeal had plainly been entitled to reach the conclusion that the defendants' convictions were safe. (WLR)
DEFAMATION
Libel - alleged monitoring of bank accounts by Saudi Arabia for possible terrorist funding - newspaper article naming of businessman and trading company - no proof of special damage required
Jameel and another v Wall Street Journal Europe Sprl: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justice Sedley and Jonathan Parker): 3 February 2005
The claimants, a Saudi Arabian businessman and his trading company, brought an action against the defendant publisher for libel as a result of an article published by the defendant.
No special damage to the claimant company was pleaded. In interlocutory proceedings the defendant submitted that, since the Human Rights Act 1998, article 10 of the Human Rights Convention had changed the common law rule by which damage was presumed once a libel was proved. The judge rejected that submission.
He directed the jury to award damages to the company if satisfied that the company had a trading reputation in England and the article bore a defamatory meaning likely to damage that trading reputation. The jury found the libel proved and awarded, among other things, £10,000 damages to the claimant company. The defendant appealed.
Geoffrey Robertson QC and Rupert Elliott (instructed by Finers Stephens Innocent, London) for the defendant; James Price QC and Justin Rushbrooke (instructed by Peter Carter-Ruck & Partners, London) for the claimants.
Held, dismissing the appeal, that the common law rule by which special damage was not required to be proved in order to establish a cause of action in libel because damage was presumed once the libel was proved, was unaffected by article 10 of the convention in respect of a corporation; that if a foreign corporation traded in and had a trading reputation in England the same rule applied, and if a foreign corporation which did not trade in England were able to establish a trading reputation within it, the same rule was similarly applicable.
DISCRIMINATION
Equal Pay - male civil servants seeking equality of pay with female employees in different government department - pay and conditions not attributable to 'single source' so female employees not appropriate comparators
Department for Environment Food and Rural Affairs v Robertson and others: CA (Lords Justice Mummery, Maurice Kay and Gage): 22 February 2005
The claimants, male civil servants working for a government department, sought equal pay with female civil servants working at another department, relying on article 141 of the EC Treaty (formerly article 119). The employment tribunal found that the comparators were appropriate comparators for equal pay purposes. The Employment Appeal Tribunal [2004] ICR 1289, allowed the employer's appeal. The claimants appealed.
Brian Langstaff QC and Michael Ford (instructed by Thompsons, London) for the claimants; Nicholas Underhill QC, Bruce Carr and Alan Payne (instructed by Solicitor, Department for Environment Food and Rural Affairs) for the employer.
Held, dismissing the appeal, that for equal pay proceedings to come within the ambit of article 141(1) the pay differences between workers of different sex performing equal work had to be 'attributed to a single source'; that the focus of this approach was on the location of the body responsible for making decisions on pay levels in the relevant establishment rather than on the legal source of that decision-making power, and the issue did not turn on precise legal analysis or, in the case of civil servants, on constitutional doctrines or arrangements; that the fact of having a common employer was not in itself enough to legitimise a comparison between one worker and another; that the relevant body was the one responsible for the inequality and which could restore equal treatment; that, since departments now set their own civil servants' pay, there were no longer negotiations across the whole civil service and neither the Treasury nor the Cabinet Office had a veto over pay awards, resulting in significant variations in rates of pay across the civil service. It was the individual departments which were responsible for inequalities; and that, accordingly, there was no 'single source' to which claimants and comparators could relate and the fact of common employment by the Crown was not sufficient to attribute the terms and conditions to the Crown as the 'single source'. (ICR)
INSOLVENCY
Expense of administration - statutory liabilities for redundancy or unfair dismissal - unsecured claims and not expenses of administration
In re Allders Department Stores Ltd (in administration); In re Allders Stores Ltd (in administration); In re Allders Ltd (in administration): ChD (Mr Justice Lawrence Collins): 16 February 2005
The administrators of the companies sought directions and a declaration that any statutory liabilities for redundancy or unfair dismissal due to employees of the companies in administration, following termination of their employment, were not required to be paid as an expense of the administration under rule 2.67(1)(f) of the Insolvency Rules (SI 1986 No 1925 as substituted by SI 2003 No 1730) or otherwise.
The insolvency service of the Department of Trade and Industry argued that all statutory employment payments, including unfair dismissal payments, were payable as expenses of the administration.
Richard Sheldon QC and Felicity Toube (instructed by DLA Piper Rudnick Gray Cary, London) for the administrators; William Trower QC (instructed by the Treasury Solicitor) for the Attorney-General.
Held, that redundancy payments or unfair dismissal payments were not 'wages or salary' under paragraph 99 of schedule B1 to the Insolvency Act 1986, as amended by section 248(1) and 249 of and schedule 16 to the Enterprise Act 2002, and therefore, did not have priority to the administrative expenses; that the position in paragraph 99 of schedule B1 was not affected by the general administration expenses provisions in the Insolvency Rules 1986; that the statutory liabilities for redundancy payments or unfair dismissal claims were not 'necessary disbursements' for the purposes of rule 2.67(1)(f) of the Insolvency Rules 1986; and that, accordingly, the employment claims were not required to be paid as an administrative expense and would be unsecured claims in the administration, and therefore, directions would be given in a manner contended for by the administrators.
LAND
Planning - alterations to airport for accommodation of larger aircraft - compensation not payable for decrease in value of property from increased noise
Brunt and others v Southampton International Airport Ltd: CA (Lords Justice Ward, Tuckey and Neuberger): 7 February 2005
Alterations to the defendant's airport were completed in 1995, increasing aircraft parking areas so as to allow use by larger aircraft and expand commercial air traffic. The effect was not to increase the aggregate aircraft movements but to facilitate a substantial increase in movements of larger aircraft.
A claim under the Land Compensation Act 1973 by nearby property owners for compensation for depreciation in the value of their homes that resulted from increased aircraft noise was dismissed by the Lands Tribunal. The claimants appealed.
Timothy Fancourt QC (instructed by Dutton Gregory, Winchester) for the claimants; Andrew Tait QC (instructed by Robert Herga, director of Group Legal at BAA) for the defendant.
Held, dismissing the appeal, that part 1 of the Land Compensation Act 1973 provided for compensation for home owners from the effects of physical impact of certain works done under statutory powers; that section 9(6)(b) of the Act provided for the relief where airport apron alterations were carried out for 'the provision of facilities for a greater number of aircraft'; that the claimants failed to bring their claim within that provision since it required a numerical comparison of all aircraft movements to be made and had no application where larger aircraft, resulting in increasing passenger capacity, were the cause of the depreciated house values.
Vendor contracting to sell freehold - vendor acting in breach of covenant with tenant prior to completion - vendor not breaching duty to purchaser as trustee and entitled to specific performance
Englewood Properties Ltd v Patel and another: ChD (Mr Justice Lawrence Collins): 16 February 2005
The claimant owned a parade of shops, one of which was let to W plc under a lease containing a covenant that if the claimant sold any of the other shops in the parade the conveyance would contain a clause preventing the purchaser from using it as a fixed-price store.
The claimant contracted to sell that shop to the defendants. Prior to completion of the sale, the claimant sold the other shops in the parade, but in none of the agreements relating to the those properties was the covenant as to use inserted.
The defendants claimed that while W plc remained tenants there was a risk to them of a claim for damages should a fixed- price store trade from any of the other shops and that by failing to insert the covenant the claimant had breached its duties as a trustee, and they refused to complete the sale. The claimants brought proceedings for specific performance and were granted summary judgment. The defendants appealed.
Mark Warwick (instructed by Russell-Cooke, London) for the defendants; David Hodge QC (instructed by Jeffrey Green Russell, London) for the claimant.
Held, dismissing the appeal, that the vendor, as trustee in equity, pending completion of the sale had a duty to preserve the property in its state as at the time of the contract so that the purchaser received what he had acquired under the contract; but that that duty did not extend to a lessor's duty to impose covenants on purchasers of adjoining properties unless that duty was imposed by the contract of sale of the property in question; and that, accordingly, the claimant was entitled to enforce the contract of sale.
PRACTICE
Permission to appeal - application for permission to appeal from first appeal in county court - no 'important point of principle or practice' or 'other compelling reason'
Uphill (Widow and Administratrix of the Estate of Malcolm Ernest Uphill) v BRB (Residuary) Ltd: CA (Lords Justice Tuckey and Dyson): 3 February 2005
The claimant brought an action for damages for negligence under, among other things, the Fatal Accidents Act 1976 in respect of the death of her husband from mesothelioma.
The defendant was a body created to deal with such claims against its predecessors in title. The claim form was issued just within the limitation period but served out of time. An order for an extension of time for service was made, and service wrongly effected although the claim was passed on to the defendant. On the defendant's application, the district judge refused to set aside the extension of time and dispensed with service under CPR rule 6.9. On appeal the judge, among other things, upheld the district judge's order. The defendant sought permission for a second appeal.
Mark James (instructed by Weightmans, London) for the defendant; Robert O'Leary (instructed by Hugh James, Blackwood) for the claimant.
Held, refusing permission to appeal but stating that the case could be cited in other cases, that permission to appeal for a second appeal under CPR rule 52.13(2), should only be granted in exceptional cases; that permission could be given under rule 52.13(2)(a) where the appeal raised an important point of principle or practice that had not yet been determined, but should be refused where it was argued that an established principle or practice had not been correctly applied; that 'other compelling reason' in rule 52.13(2)(b) encompassed cases with very high prospects of success where, for instance, an authority showing the case was wrongly decided post-dated the appeal or where the hearing was tainted with procedural irregularity leading to unfairness.
PRISONS
Prisoner's rights - disciplinary proceedings - deputy governor not impartial tribunal
R (Al-Hasan) v Secretary of State for the Home Department; R (Carroll) v Secretary of State for the Home Department: HL (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood): 16 February 2005
The two applicants were long-term category A prisoners at a high-security prison.
The prison governor ordered a search of prisoners from two wings which housed category A prisoners after dogs trained in arms and explosives detection gave positive indications within a classroom used by those prisoners.
The items being searched for were thought to be of a kind that could threaten the security of the prison and could be hidden in a prisoner's anal or genital area. The prison governor was briefed, in the presence of the deputy governor, and specifically approved an order requiring prisoners to squat as part of the strip search so that any items concealed in the anal or genital area could be seen. Both applicants refused to comply with the squat search order and were charged with the disciplinary offence of disobeying a lawful order contrary to rule 47(19) of the Prison Rules 1964. The charges were heard by the deputy governor who had been present when the governor gave the squat search order.
At the hearing, the applicants did not dispute that they had disobeyed an order, but their defence was that the order to squat had not been lawful. The deputy governor found that the order was lawful and he found both charges proved. The applicants sought judicial review on the ground, among other things, that there was procedural unfairness in that the deputy governor who conducted the adjudication lacked sufficient independence to adjudicate on the legality of the order to squat. The judge refused judicial review and the Court of Appeal dismissed the applicants' appeals. They appealed to the House of Lords.
Edward Fitzgerald QC and Hugh Southey (instructed by Deighton Guedalla, London) for the prisoner Al-Hasan; Edward Fitzgerald QC and Kris Gledhill (instructed by Hodge Jones & Allen, London) for the prisoner Carroll; Philip Sales QC and Sam Grodzinski (instructed by the Treasury Solicitor) for the secretary of state.
Held, allowing the appeals, that the common law test was whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias; that since the deputy governor had been present when the squat search order was approved, and had not dissented from that approval, the fair-minded observer might infer that he had tacitly accepted that the order was lawful; that when the order was disobeyed and he subsequently came to rule on its lawfulness, there was a real possibility that he might be predisposed to find it lawful; that therefore, in all the circumstances of the case, the deputy governor appeared to lack the necessary degree of objective impartiality to adjudicate on the disciplinary charges against the prisoners; and that, accordingly, the ruling was tainted by procedural unfairness for want of independence and impartiality on the part of the tribunal, and the findings of guilt against the applicants were expunged. (WLR)
The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales. WLR means that a report has been submitted for publication in the Weekly Law Reports
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