COURTS


Judicial precedent - decision of House of Lords incompatible with subsequent decision of European Court of Human Rights - courts of inferior jurisdiction to follow House of Lords

Leeds City Council v Price and others: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Brooke and Sedley): 16 March 2005



The council was the freehold owner of land occupied in May 2004 by gipsies without consent. In June, the defendants moved onto the land just before the council commenced possession proceedings.


Their only defence lay in the assertion that possession would infringe their rights under article 8 of the European Convention on Human Rights.


On the determination of a preliminary issue, the judge held that he was bound by a House of Lords decision to hold that the exercise of an absolute proprietary right to possession could not infringe article 8, and that that decision was not in conflict with a later decision of the European Court of Human Rights. The defendants appealed.


Alex Offer (instructed by Davies Gore Lomax, Leeds) for the defendants; Ashley Underwood QC and Tom Tyson (instructed by Leeds City Council Legal and Democratic Services) for the council.


Held, dismissing the appeal but granting permission to appeal, that the decision of the European court was incompatible with the proposition established by the House of Lords that the exercise by a public authority of an unqualified proprietary right to repossess its land would never constitute an interference with the occupier's right to respect for his home, or would always be justified under article 8(2); and that, when a House of Lords decision conflicted with a subsequent decision of the European Court of Human Rights, inferior courts were bound to follow the House of Lords.






CRIMINAL


Witnesses not giving evidence through fear or because they could not be found - witness statements admitted in evidence - no infringement of defendant's convention rights to examine witnesses or to fair trial

R v Sellick and another: CA (Lord Justice Waller, Mr Justice Owen and Mr Justice Fulford): 14 March 2005


At the defendants' trial for murder, the judge gave leave in the interests of justice, pursuant to sections 23 and 26 of the Criminal Justice Act 1988, for statements of four witnesses to be read, on the basis that he was sure that two of them had been kept away through fear and that all reasonable steps had been taken to find the other two who could not be found.


The defendants were convicted. They appealed on the grounds that their right to a fair trial under article 6 of the European Convention on Human Rights had been infringed, in particular the right under article 6(3)(d) to examine witnesses against them; that they had been given no proper opportunity to challenge the statements at any stage of the proceedings; and that, since the statements were decisive or represented the sole evidence against them, they could not be admitted.


Stephen Solley QC and Alexander Dos Santos (instructed by Paul Martin & Co, Romford) for the defendants; Timothy Raggatt QC and Jonathan Salmon (Crown Prosecution Service, Wolverhampton) for the Crown.


Held, dismissing the appeal, that, since the statements were from identified witnesses whom the court either was sure had been kept away by the defendants through fear, or was sure could not be found but believed it highly probable that they had been kept away by fear, the defendants had deprived themselves of their only opportunity to examine the witnesses and they could not therefore complain that their right under article 6(3)(d) of the convention was thereby infringed; and the fact that a statement was decisive or the sole evidence against a defendant did not automatically mean that its admission infringed the right to a fair trial under article 6 of the convention.






INSOLVENCY


Registrar making order declaring money held on trust for bankrupt's estate - registrar rescinding order - power to rescind to be exercised only where change of circumstances made it appropriate for court to reconsider earlier order

Papanicola v Humphreys and others: ChD (Mr Justice Laddie): 14 March 2005


The registrar made an order in bankruptcy proceedings that the third respondent company held an amount of money, received by it through processing credit card transactions on behalf of the bankrupt, on trust for the bankrupt's estate, and that the first and second respondents attend court for examination. On the respondent's application, the registrar subsequently rescinded that order pursuant to section 375 of the Insolvency Act 1986. The trustee in bankruptcy appealed.


Christopher Parker (instructed by Judge Sykes Frixou, London) for the trustee in bankruptcy; Jamie Riley (instructed by RHF Solicitors, Manchester) for the first respondent; the second and third respondents did not appear and were not represented.


Held, allowing the appeal, that inherent in the powers under section 375 of the 1986 Act was the concept that something had changed so that it was appropriate for the court to reconsider its own earlier order; that if there had been no change in circumstances the only way to challenge the order was by way of appeal; that the court was not to review its order simply on the basis that the applicant wanted to present essentially the same facts and the same arguments but more forcefully or attractively; and that there were no exceptional circumstances justifying the rescission of the earlier order by the registrar.




Application for leave to bring arbitration proceedings against company in provisional liquidation - application opposed on ground that proposed proceedings unmeritorious - court required to consider merits of dispute despite arbitration clause and to grant leave only if finding real issue to be tried

Enron Metals & Commodity Ltd v HIH Casualty and General Insurance Ltd: ChD (Mr Justice Pumfrey): 10 March 2005


The applicant and the company entered into a contract which provided that any dispute arising between them would be referred to arbitration. The company went into provisional liquidation. A dispute arose between the applicant and the company and the applicant sought leave, pursuant to section 130(2) of the Insolvency Act 1986, to bring arbitration proceedings. The company contended that the claim was so bad that it would be a waste of resources to allow it to proceed to arbitration.


Matthew Hardwick (instructed by Holman Fenwick & Willan, London) for the applicant; Jeremy Goldring (instructed by Clyde & Co, London) for the company.


Held, dismissing the application, that the court was obliged to consider the merits of the dispute before deciding whether it should go to arbitration; that although the parties had chosen a method of dispute resolution which effectively excluded the court from considering the merits, the discretion conferred by section 130(2) of the Insolvency Act 1986 extended to the assessment of the triability of a claim sought to be raised against a company; that the court should not contemplate granting leave unless the proposed claim satisfied the test in part 24 of the Civil Procedure Rules 1998 of a real issue to be tried; that, had the claim been started in the High Court, it would have been struck out; and that, accordingly, it was not appropriate to grant leave.






LANDLORD AND TENANT


Block of flats held under single long lease - tenant seeking new leases of each flat and of common parts - tenant entitled to new leases as 'qualifying tenant'

Maurice & Others v Hollow-Ware Products Ltd: ChD (Mr David Donaldson QC, deputy High Court judge): 15 March 2005


The tenant leased a block of 28 flats under a single long lease. It served a notice pursuant to section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 requiring new leases of all 28 flats.


The landlords served a counter-notice which drew attention to the fact that the entire building was held on one lease, whereas under the grant of the new leases sought by the tenant there would be 28 leases of the flats as well as the existing lease, which would continue insofar as it applied to the remainder of the property. In those circumstances, the new leases would not be 'in substitution of the existing lease', as required by section 56(1) of the 1993 Act, and therefore, the defendant was not a qualifying tenant.


The landlords sought a declaration that the defendant had no right to acquire the new leases.


Kenneth Munro (instructed by Taylor Wessing, London) for the landlords; Anthony Radevsky (instructed by Teacher Stern Selby, London) for the tenant.


Held, dismissing the claim and granting the tenant a declaration under section 46(4) of the 1993 Act, that section 56(1)(a) could be interpreted as providing that new leases should be granted in substitution for an existing lease to the extent of the premises covered by the new lease or leases; that although there would have to be a modification of the existing lease to ensure that the consideration payable under it was reduced to account for the fact that it no longer covered the parts of the premises to be demised under the new leases, provision for such a modification existed at common law; and that, accordingly, the tenant was a qualifying tenant and entitled to a declaration that the landlords' counter-notice was of no effect.






PRACTICE


Sale of mortgaged property - claim for shortfall - mortgagee's failure to disclose that purchaser connected company not abuse of process but mortgagor entitled to retrial

Bradford & Bingley plc v Ross: CA (Lords Justice Ward, Chadwick and Clarke): 11 March 2005


In 1990, the defendant arranged a mortgage with the claimant's predecessor to enable him to purchase his home. He fell into arrears and in 1993 the claimant, having obtained a possession order, sold the property to a closely connected company. It failed to disclose the nature of the sale transaction to the defendant or to the court.


The judge in the county court ordered the defendant to pay some £43,000 as shortfall to the claimant. The defendant appealed, seeking to have the claim struck out on grounds of abuse of process of the court.


Sebastian Clegg (instructed by Rowlands, Manchester) for the defendant; Stephen Innes (instructed by Drydens, Bradford) for the claimant.


Held, allowing the appeal to the extent of ordering a retrial, that the claimant had failed to establish that it had made the sale of the property in good faith and had taken reasonable precautions to obtain the best price; that had the judge been informed that the transactions involved closely connected companies he might have come to a different decision; that the defendant should not be denied an opportunity for a retrial; but that to treat the claimant's conduct as an abuse of process thus preventing it from recovering any shortfall would be disproportionate.






SOCIAL SECURITY


Sick and disabled persons - council's duty to make arrangements for disabled persons - council entitled to take resources of disabled child's parents into account

R (Spink) v Wandsworth London Borough Council: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justice May and Rix): 18 March 2005


The claimants, aged 17 and 13, were severely disabled. Their parents looked after them at home with the help of carers. The home needed alterations to enable the claimants to be cared for safely.


The parents alleged that the council was under a statutory duty to provide and pay for those alterations. The council, being of the view that the existence of that duty depended on whether the parents could reasonably be expected to pay for the alterations themselves, asked the parents for details of their means, which the parents declined to provide.


The council stated that it was not necessary for the authority to make arrangements for adaptations under section 2 of the Chronically Sick and Disabled Persons Act 1970 (as amended) if a disabled person, or a disabled child's parents, had sufficient resources to meet the needs themselves.


The claimants were refused judicial review of the council's statement. They appealed.


Richard Gordon QC and Ian Wise (instructed by Irwin Mitchell, Sheffield) for the claimants; Charles Béar QC and Clive Sheldon (instructed by DMH Stallard, Brighton) for the council; Steven Kovats (instructed by the Treasury Solicitor) for the Secretary of State for Education and Skills, intervening.


Held, dismissing the appeal, that, on a true construction, section 2 of the Chronically Sick and Disabled Persons Act 1970 (as amended) did not oblige a local authority to fund alterations to the home of disabled children which were necessary for their care until it had been demonstrated that it was not reasonable to expect their parents to do so taking into account their means.






WILL


Attestation - will signed and in proper form - strong presumption of due execution rebuttable only by strongest evidence to contrary

Sherrington and others v Sherrington: CA (Lords Justice Peter Gibson, Waller and Neuberger): 22 March 2005


The claimants commenced proceedings to revoke the grant of probate which had been made to the defendant in respect of the deceased's will.


The judge found that the witnesses signing the will had not known that the document they were signing was a will, had not noticed that it had been signed by the deceased and had not understood that the purpose of their signatures was to attest the deceased's signature.


Holding that the witnesses had not intended to attest the will and that the will, therefore, did not comply with the requirements of section 9 of the Wills Act 1837, Mr Justice Lightman [2004] EWHC 1613 (Ch) revoked the grant. The defendant appealed.


Alan Boyle QC and Paul Teverson (instructed by Goldkorn Mathias Gentle, London) for the defendant; Elspeth Talbot Rice (instructed by Withers, London) for the claimants.


Held, allowing the appeal, that the court had to be satisfied that the witness had signed the will with the intention of attesting the testator's signature or of attesting the will, and it was not sufficient that the will had been signed and was in proper form; that, in the absence of the strongest evidence to the contrary, the necessary intention would be inferred from the presence of the testator's signature on the will, the attestation clause and, underneath that clause, the signature of the witness; and that in the present case the strong presumption of due execution arising from what, on its face, was a properly executed will had not been rebutted by the evidence and the judge had been wrong to conclude otherwise.