EMPLOYMENT

Employer served with improvement notice purporting to specify measures needed to remedy contravention - measures required unclear - notice invalid

BT Fleet Ltd v McKenna: ChD (Mr Justice Evans-Lombe): 17 March 2005



An inspector of the Health and Safety Executive served a notice on the employer under section 21 of the Health and Safety at Work Act 1974, which stated it had failed to avoid the need for its employees to undertake manual handling operations, and that in order to comply with the notice, the employer had to provide mechanical aids or any other equally effective measures of complying with the notice. The employer challenged the notice.


The employment tribunal, holding that the phrase 'any other equally effective measures' included ensuring that the claimant's written procedure on manual handling was properly followed and monitored, affirmed the notice but modified it by adding the words 'such as ensuring that adequate training and supervision is in place'. The employer appealed.


Jonathan Hall (instructed by General Counsel, BT Legal) for the employer; Mark Harris (instructed by Berwin Leighton Paisner, London) for the inspector.


Held, allowing the appeal, that a notice under section 21 of the 1974 Act should enable the recipient to know what was wrong and why it was wrong and should be clear and easily understood; that although it was not compulsory for the notice to contain directions as to the measures to be taken to remedy a contravention, if the inspector chose to do so then the specification of how compliance could be effected formed part of the notice and, if confusing, might render it invalid; that the notice was not clear and the tribunal should not have attempted to put matters right by amendment; and that, accordingly, its order affirming the notice would be quashed and substituted by an order cancelling it.






FAMILY


IVF treatment - woman and man separating before implantation - man not legal father of child

In re R (A Child) (IVF: Paternity of Child): HL (Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Walker of Gestingthorpe): 12 May 2005


The mother, D, and B, who were unmarried, sought IVF treatment involving the fertilisation of D's eggs with donor sperm. B signed a form acknowledging that he would be the legal father of any resulting child. By the time a successful implantation took place D and B had separated and the implantation took place without B's knowledge. On an application by B, the judge declared, under section 28(3) of the Human Fertilisation and Embryology Act 1990, that B was the legal father of the resulting child, R. The Court of Appeal allowed D's appeal. B appealed.


Julia Macur QC and James Gatenby (instructed by Sharpe Pritchard, London for Stephen D Brine, Liverpool) for B; Andrew McFarlane QC and Leona Harrison (instructed by Cobleys, Liverpool) for D; Peter Jackson QC (instructed by CAFCASS Legal) for R's guardian ad litem.


Held, dismissing the appeal, that section 28(3) should apply only to cases falling clearly within it and the legal relationship of parenthood should not be based on a fiction, especially where deception was involved; that the embryo had to have been placed in the woman when treatment services were provided for her and the man together; and that, although they had originally been so provided for D and B, they had not been when implantation had taken place.






INJUNCTION


Harassment campaign pursued against guinea pig breeders - injunctive relief granted - zone excluding campaigners not imposed

Hall and others v Save Newchurch Guinea Pigs (Campaign) and others: QBD (Mr Justice Owen): 17 March 2005


The first five claimants' farming activities included the breeding of guinea pigs for medical research. The defendants were unincorporated associations involved in the animal rights movement and individuals alleged by the claimants to be involved in that movement.


The claimants claimed that they, their relatives, friends, employees and tenants had been subjected to a lengthy and sustained campaign by animal rights activists directed at closing down their guinea pig breeding activities, and that campaign had extended to their contractors, their contractors' employees and their families.


The first defendant admitted that, since around September 1999, it had been conducting a campaign aimed at closing the guinea pig breeding business, but asserted that it had been lawful.


An interim injunction had been made in December 2004 restraining the relevant protesters from pursuing a course of conduct which amounted to harassment of the relevant protected persons. The claimants sought to make that order final and an order excluding protestors from a proposed exclusion zone covering approximately 200 square kilometres.


Timothy Lawson-Cruttenden, solicitor-advocate (of Lawson-Cruttenden & Co, London) for the claimants; Simon Dally, lay representative, for the first 16 defendants; the 17th defendant did not appear and was not represented.


Held, granting injunctive relief but refusing to order the exclusion zone, that the unlawful activities of the protestors could be described as a guerrilla campaign and invoking the jurisdiction of the Protection from Harassment Act 1997 did not amount to an abuse of process in those circumstances; that the imposition of the exclusion zone would unquestionably have been a Draconian remedy and had to be weighed against the extreme nature of the campaign waged against the claimants; that the injunctive relief had to be no wider than necessary and so the interim injunction was to be extended and tested before an exclusion zone could be imposed; and that, if that protection proved inadequate, the matter could be restored with the probable outcome of the imposition of the exclusion zone.






PRACTICE


Discovery of documents - litigation privilege - 'fraud exception' applicable

Kuwait Airways Corpn v Iraqi Airways Co (No 6): CA (Lords Justice Ward and Longmore): 16 March 2005


The action was the fourth commenced by the claimant in relation to its action for the wrongful interference by the defendant with its commercial aircraft. The claimant applied for inspection of the defendant's documents on the basis that they had been generated as part of a fraud on the court in earlier actions between the parties, that fraud being an issue in the current proceedings.


The judge permitted inspection on the basis that the 'fraud exception', established in R v Cox and Railton (1884) 14 QBD 153, applied to negate legal professional privilege. The defendant appealed.


Joe Smouha QC, Sam Wordsworth and Nathan Pillow (instructed by Howard Kennedy, London) for the claimant; Robert Hildyard QC and Stephen Nathan (instructed by Teacher Stern Selby, London) for the defendant.


Held, dismissing the appeal, that two classes of legal professional privilege existed, namely legal advice privilege and litigation privilege; that the fraud exception applied to both criminal and civil cases; that although the courts should always be cautious before ordering inspection, the fraud exception could apply to litigation privilege; and that the defendant's widespread conspiracy to deceive the English courts was such as to make an order for inspection of the documents by the claimant appropriate and proper.