CIVIL PROCEDURE


Bills of costs - detailed assessment - delay in commencing proceedings

Less & Ors v Benedict: ChD (Mr Justice Warren): 25 July 2005



A receiving party's three-year delay in bringing detailed costs assessment proceedings had not constituted a breach of the paying parties' right to a hearing within a reasonable time pursuant to article 6 of the European Convention on Human Rights, nor had the delay been abusive so as to merit a sanction under rule 44.14 of the Civil Procedure Rules (CPR) 1998.


CPR part 47 provided a mechanism for the paying parties to bring the matter to the attention of the court to obtain a hearing within a reasonable time, and therefore it could not be said that they had been deprived of their rights under article 6 where they failed to take advantage of that mechanism.


The appellant paying parties (C) appealed against a decision refusing the total or partial disallowance of the bill of costs of the respondent receiving party (D). D had served a notice of commencement of assessment of bill of costs on C following dismissal of C's claim against D and costs order against C. The notice had been served within the time-limit specified in CPR rule 47.7. However, there had been some confusion as to whether the notice had been properly served on C. As a result, only one of the five paying parties had been aware of D's notice at the time of service.


Around three and a half years later, D re-served the notices on C at their last known addresses following a court order intended to eliminate any question about proper service. The court order directed C to serve their points of dispute by a certain date, which C had not complied with as they sought an order for the striking out of D's assessment on the grounds of inordinate delay. C submitted that their right to a hearing within a reasonable time under article 6 would be breached if the costs assessment was allowed to continue; D's excessive and unreasonable delay without explanation was an abuse of process, and C could not have a fair hearing as they no longer had access to the relevant files; the court should impose a sanction for delay pursuant to CPR rules 3.4 and 44.14; it was inappropriate to order re-service of the notice some three and a half years after its effective date, and such an order amounted to a re-running of the assessment which was not a course open to the master in the exercise of his discretion.


Andrew Ayres (instructed by Beachcroft Wansbroughs, London) for the appellant; Alexander Hutton (instructed by Stephenson Harwood, London) for the respondent.


Held, there had been no violation of C's rights under article 6. CPR Part 47 provided a mechanism for C to bring the matter to the attention of the court to obtain a hearing within a reasonable time. If a party failed to take advantage of that mechanism, it could not be said that he had thereby been deprived of his rights under article 6. The court itself had not been responsible for any delay. Furthermore, it did not follow from the fact that a delay had been a violation of the rights under article 6 that a subsequent hearing would itself be a further breach of such rights. The court would not, by proceeding to a hearing, be sanctioning a continuance of a breach of those rights, but would be taking remedial action to correct the consequences of the breach. Moreover, if the court were to refuse to hear the instant case on the basis of a prior breach of article 6, the result would be to deprive D entirely of the benefit of his costs order, which would be a breach of D's own rights under article 6. A hearing should take place to allow D's rights to be determined, thus correcting any alleged breach of article 6 as a result of the delay.


D had given no explanation for the delay because there was no explanation. He had simply failed to proceed with the speed the rules required. However, that did not mean that D had acted in deliberate disregard of the rules or with a view of never bringing the matter to a hearing. At the assessment hearing, the master's finding that the absence of papers on C's side was by no means fatal to a fair hearing was correct since the receiving party's papers were the important ones on an assessment and it was the receiving party who would be likely to lose out by any delay.


There was nothing that would justify categorising D's conduct as unreasonable or improper to justify imposing a sanction under rule 44.14.


The facts of the instant case could be distinguished from Mainwaring v Goldtech Investments (The Times, 19 January, 1991) where a full detailed assessment had already been carried out. The master had acted well within his discretion in ordering re-service in order to allow the detailed assessment to continue. Appeal dismissed.






EMPLOYMENT



Compromise agreements - contract of employment - fiduciary duty - non-solicitation covenants - meaning of enticement

(1) Hydra Plc (2) Hydra Liveware Ltd (3) Comms Liveware Ltd (4) Ecommbox Ltd v (1) Martin Anastasi (2) Keith Marsh (3) Tomax Solutions: QBD (Mr Justice Royce) 20 July 2005


A clause in a compromise agreement, under which a former employee of a company agreed not to solicit or entice away any employees of the company, was not breached where another employee of the company had approached the former employee and was subsequently employed.


The first claimant company (H) sought damages against the first defendant (X) and third defendant company (T) for breach of a compromise agreement. H also brought a claim against the second defendant (M) in relation to breaches of his contract of employment. X had been employed by H. X then set up T, which supplied services to H. H decided that it no longer required T or X's services and pursuant to a compromise agreement those services ceased. M was employed by H as a salesman. However, M later left H to join X and T as a partner.


Under the compromise agreement, X and T agreed not to approach any actual, prospective or potential customers within a period of nine months from the date of the agreement, and not to solicit or entice away any employee of H for the period of 12 months following the termination date.


Under M's contract of employment, he was restricted from entering into a partnership with a key person for a period of 12 months following the termination of his employment. H contended that T had wrongly poached H's customers; X had wrongly solicited M to leave H; M had been in breach of restrictive covenants in his employment contract and in breach of implied terms and fiduciary duties.


Jeffrey Bacon (instructed by Ince & Co, London) for the claimants; Daniel Barnett (instructed by Turbervilles, Uxbridge) for the defendants.


Held, on the evidence, T had not approached H's customers. H had not provided any evidence in relation to that contention. The clause in the agreement, which provided that X and T would not solicit or entice away any employee of H for a period of 12 months following the termination date, was not unreasonably in restraint of trade by reason of the fact that it did not distinguish between senior and more junior members of staff. Each case had to be looked at on its own facts. H was a small company with few employees. It was entitled to protect the stability of its relatively small workforce. However, entice meant 'tempt, lure, persuade and inveigle', and therefore the clause did not cover the circumstances of the instant case where M had approached X and sought to persuade him to let him join the new venture. X had not endeavoured to entice away M, Austin Knight (UK) v Hind (1994) FSR 52 considered.


M had been technically in breach of the restrictive covenant not to enter into a partnership with a key person within 12 months of leaving H by virtue of being a partner of X, who was a key person. However, there was no implied duty of confidence as his duty in that regard was fully set out in his employment contract. Furthermore, on the facts, there had been no breach of fiduciary duties. M's position was not a very senior one and his tasks were not such as to lead to the additional fiduciary duties or implied duty of fidelity in the respects particularised over and above those accepted by M. It was accepted by M that there was a duty to serve H with good faith, not to make a secret profit, not to pass on confidential information and not to exploit H's business opportunities. On the evidence, there had been no dishonest assistance by T and X, and no tortious, equitable or contractual liability on the part of X or T. Judgment accordingly.





FAMILY


Behaviour - duration - equality - financial provision - judicial decision making - lump-sum payments - approach to exercise of discretion - 'big money/short marriage' cases - childless marriages

Alan Jonathan Richard Miller v Melissa Suzanne Miller: CA (Civ Div) (Lords Justice Thorpe, Wall, Mr Justice Black): 29 July 2005


When determining financial provision in short-marriage cases, judges had to apply the factors in section 25(2) of the Matrimonial Causes Act 1973 to the facts of each individual case to achieve a fair result that avoided discrimination. Proposed outcomes were to be tested against the yardstick of equality.


The appellant husband (H) appealed against an overall award of £5 million in favour of the respondent wife (W) following divorce proceedings. H and W had been married for almost four years when H left to pursue his relationship with another woman. Attempts to start a family had been unsuccessful. Divorce proceedings followed. The case was termed by the court as a 'big money/short marriage' case - H was an exceptionally successful fund manager and a high-earner, whereas W had worked during the first couple of years of the marriage, but later devoted her attention to refurbishing a holiday home in their joint names.


At the outset of the divorce proceedings, W had declared that she would not rely on section 25(2)(g) of the Matrimonial Causes Act 1973 in her claim for ancillary relief, yet the trial judge had investigated the circumstances of the marriage and its breakdown, and had indicated in his judgment that he accepted W's account that H was to blame for the breakdown. He had resolved that a fair outcome was for W's half share of the villa to go to H, but that W should have the London home valued at £2.3 million together with a lump sum of £2.7 million.


H submitted that the judge had erred in permitting W to adduce evidence as to the cause of the breakdown in the face of her earlier declaration; the judge had erred in holding that H was to blame for the breakdown of the marriage that had shielded W from H's reliance on the short duration of the marriage; legitimate expectation by W of a higher standard of affluence after the marriage than before it was wrong as a basis to justify a substantial award; the judge had wrongly rejected a clear line of authority establishing a principle on which claims were to be determined in short-marriage cases.


Lewis Marks QC, Alexander Thorpe (instructed by Sears Tooth, London) for the appellant; Nicholas Mostyn QC, Rebecca Bailey-Harris (instructed by Withers, London) for the respondent.


Held, the statutory criteria should not be rigidly characterised. The fact that W had initially agreed not to rely on section 25(2)(g) did not make her evidence on the topic irrelevant or inadmissible. A retreat from a clear declaration was generally to be deprecated, but such a declaration could not override or circumscribe a trial judge's obligation to investigate what he conceived to be relevant and necessary to enable him to discharge his statutory duty. Ancillary relief proceedings were quasi-inquisitorial and judges were not confined by what the parties elected to put in evidence. They had an overriding obligation to regard, and to reflect in their judgments, all the circumstances of the case. On the facts, the cause of the marriage breakdown was relevant.


The proper approach to the exercise of judicial discretion when dealing with section 25(2)(d) of the 1973 Act in short-marriage cases was to be found in Wyatt-Jones v Goldsmith (2004) 1 FLR 1011, and that case could not be distinguished on the basis that it concerned conduct that it would be inequitable within the meaning of section 25(2)(g) to disregard.


Despite the fact that the judge had not fully explained his ultimate award, there was sufficient indication in his judgment of the relevant factors and how he had balanced them. Although at the top end of the appropriate bracket, the award could not be labelled as plainly excessive or outside the judge's discretion. He had been entitled to regard W's legitimate expectation as a key element, although the facts of the case were highly unusual and that approach was not to be elevated into a general principle. On the facts, the judge had correctly identified as key factors fairness, non-discrimination and W's commitment to the marriage but caution was advised in using the reasoning in any case as a template for others. Judges had to apply the factors in section 25(2) to the facts of each individual case to achieve a fair result that avoided discrimination. Proposed outcomes were to be tested against the yardstick of equality.


Short-marriage cases heard before White (Pamela Rosemary) v White (Martin Edward John) (2001) AC 596 were all liable to attack on the basis that they were discriminatory (Foster (Stephen Thomas) v Foster (Tracey Jean) (2003) EWCA Civ 565; (2003) 2 FLR 299 considered; Gjkovic v Gojkovic (No 2) (1992) Fam 40, Attar v Attar (No2) (1985) Fam Law 252 and Robertson v Robertson Fam 387 doubted; McFarlane v McFarlane (2004) EWCA Civ 872; (2004) 3 WLR 1480; and White applied). Appeal dismissed.






NEGLIGENCE



Assumption of responsibility - duty of care - vet instructed to observe administration of drugs to horse - obligation to take reasonable steps to clarify and understand which drugs were administered.

Philip John Glyn (t/a Priors Farm Equine Veterinary Surgery) (claimant/first part 20 defendant (first claim)) v (1) Jane McGarel-Groves (defendant/part 20 claimant (first claim)) (2) Erik Grandiere (second part 20 defendant (first claim)) and part 20 claimant (second claim) (3) Clinique Veterinaire Equine De Chantilly (part 20 defendant (second defendant)): QBD (Mr Justice Forbes) 25 July 2005


A vet who had been instructed to observe another vet carry out a treatment on a horse was under a duty to take reasonable steps to clarify and seek an understanding of what drugs were being administered and in failing to do so he had breached the duty of care that he owed the owner.


The defendant horse owner (M) counterclaimed against the claimant vet (G) for compensation in connection with the death of her horse from laminitis. M's horse (H) was a valuable dressage competition horse.


G was appointed as the vet responsible for H's veterinary care and treatment. Not long after H had become the French national champion, her performance began to drop. The veterinary surgeon of the French dressage team advised that he thought H had orthopaedic problems and that it was necessary to treat her with cortico-steroids. M consented to the treatment on the basis that G attend to protect her interests and to ensure that H was treated properly and not endangered. R was appointed to the task of carrying out the treatment.


Although G was present at the treatment, he was unaware of exactly which drugs were being used by R as the bottles had French labels. H developed laminitis as a consequence of the treatment and had to be put down. G brought proceedings against M for his veterinary fees. M counterclaimed against G and R for compensation. As there was no clinical justification for the treatment, it was common ground that R was in breach of his duty of care and was negligent. The remaining issue was as to whether G was also liable.


Andrew Edis QC, John Corless (instructed by Hill Dickinson, London) for the claimant; Patrick Lawrence QC, Sian Mirchandani (instructed by Berrymans Lace Mawer, Manchester) for the first defendant; Graeme McPherson (instructed by Fladgate Fielder, London) for the second and third defendants.


Held, if a professional was tasked with observing a procedure, it was incumbent on him to take reasonable steps to clarify and seek an understanding of what he was in fact observing. G had been given the job of observing and if necessary intervening, to protect M and H against an apparently competent vet acting incompetently. G had effectively rendered himself unable to judge whether the proposed treatment was inappropriate by his failure to make any inquiry as to the types of cortico-steroids that were to be used or as to the dosages that were to be administered. G was therefore in breach of his duty of care to M and was liable for 15% of the total losses. Judgment accordingly.





SOCIAL WELFARE


Community care - day centres - learning disabled persons - right to respect for private and family life - assessment of care needs prior to closure

R (on the application of J & Ors) v (1) Southend Borough Council (2) Essex County Council: QBD (Admin) (Mr Justice Newman) 5 August 2005


The local borough council had not acted unlawfully by failing to carry out an assessment of the care needs of clients to which it had provided day-care support since those clients had come within the statutory duty of the local county council. Accordingly, its decision to close a day centre without carrying out assessments had neither been unlawful nor had it infringed the clients' rights under article 8 of the European Convention on Human Rights.


The claimants (J) sought judicial review of a decision of the local borough council (S) to discontinue day-care services to all persons who were not ordinarily resident within its catchment area. J had learning difficulties of varying severity and were each long-term users of day centres operated by S.


In 1998, S became the unitary authority assuming responsibility from the county council (E) for providing community care services, materially under section 21 and 22 of the National Assistance Act 1948, section 2 of the the Chronically Sick and Disabled Persons Act 1970 and section 47 of the National Health Service and Community Care Act 1990, to those who were ordinarily resident in S's catchment area.


J had individually attended one or other of two care homes for more than 18 years, and while being under the statutory care of E before 1998, the assumption of responsibility by S meant they had been entitled to remain at those day centres notwith-standing that the centres had come under S's authority. However J, remained under the statutory ambit of E.


In 2003, in response to a government White Paper aimed at modernising care services in order that clients became more involved within the community, S decided to close one of the day centres and provide services at the remaining centre only for those who were ordinarily resident within its catchment area. J were not ordinarily resident in S's catchment area but were all resident within E's catchment area. Consultations took place in which S and E co-operated, in order to put into place future community and social opportunities for all those affected by the change.



J challenged S's decision on two grounds: that S had failed to carry out a statutory assessment of their care needs under section 29 of the 1948 Act, which it had been required to do as the local authority providing care services; to make the remaining centre available only to those within S's catchment area infringed J's rights to a private life under article 8 of the European Convention on Human Rights, that private life being the relationships that they had built up over many years which they would be unable to pursue in their vulnerable state by the exclusion from the day centre.


Robert Gordon QC, Paul Bowen (instructed by Bindman & Partners, London) for the claimants; Ashley Underwood QC, Ranjit Bhose (instructed by council solicitor) for the defendants.


Held, the relevant care duty and statutory responsibility towards J was owed by E and not S. E had maintained the mandatory duty to provide assessments for J and it had not discharged that responsibility by placing J with S. Accordingly, S had not acted unlawfully by failing to carry out an assessment of J's care needs since it was not under a statutory duty to do so.


On the assumption that the exclusion of J from the day centre was likely to affect their private lives, any interference with that private life was limited. S and E had taken steps to ensure that J's relationships were maintained outside the day centre. The whole situation had to be considered, and that included the opportunities that would be open to J under the modernising scheme, which was to reflect the intention of the White Paper that those with learning difficulties became more involved with society. In the circumstances, taking into account proportionality and balancing the effects of the changes upon all concerned, there was no breach of article 8. Judgment for the defendants.