MEDIA

Telecommunications - commercial broadcasting - delay - licences - locus standi - permission - Wednesbury unreasonableness - refusal of licence - director's personal application for judicial review

R (on the application of John Robert Grierson) v (1) Office of Communications (2) Atlantic Broadcasting Ltd and others: QBD (Admin) (Mr Justice Stanley Burnton): 26 August 2005



A personal application by the managing director of a broadcasting company for permission to seek judicial review of a decision by the Office of Communications (Ofcom) to award a radio licence to a rival commercial broadcaster had not been so late as to preclude consideration of it on the merits, taking its derivative nature and the delay into account and using a flexible test, considering the importance of the arguable issues, the likelihood of success and the consequences to innocent parties. However, it was only in the most exceptional cases that the court could embark on an examination of the particular points awarded by Ofcom to an applicant.


The claimant, Mr Grierson, sought permission to apply for judicial review of the decision of the defendant radio licensing authority and regulator, Ofcom, to grant a licence to one of the interested parties, Atlantic, and not to a company, CKFM Kernow, of which he was managing director and in which he had a modest investment.


Five weeks after Ofcom's decision, CKFM's directors met and decided not to challenge the decision, but after a further six weeks Mr Grierson proceeded in person, seeking to quash Ofcom's decision on the grounds of Wednesbury unreasonableness, a retaking of it, and a stay of the grant of the licence pending conclusion of the matter. Neither CKFM nor any of the other applicants for the licence supported him.


Ofcom and Atlantic submitted that Mr Grierson had not brought proceedings promptly, as required by Civil Procedure Rule 54.5, and that he did not have the standing to bring the proceedings. They argued that to allow him to bring proceedings for review would be inconsistent with CKFM's decision not to challenge the award of the licence.


The claimant in person. Kate Gallafent (instructed by the solicitor, Ofcom) for the defendant; Philip Coppel (instructed by Follett Stock, Truro) for the interested party.


Held, Mr Grierson could not be criticised for waiting for the board meeting, but that should have been called as a matter of urgency. Although litigants in person were entitled to a certain amount of leeway on time limits, in his case that was significantly reduced by his being qualified as a solicitor and barrister. Atlantic had already suffered financial loss by reason of the delay, would suffer more if he were given permission to apply for judicial review, and would suffer still further if the decision to award Atlantic the licence were set aside, a risk the court should not expect it to take. Atlantic was not a party to the alleged defects in Ofcom's decision.


Mr Grierson had a real interest in Ofcom's decision to award the licence to Atlantic and stood to gain financially from its award to CKFM, but neither CKFM nor any other unsuccessful applicant had sought to challenge the decision. The derivative nature of Mr Grierson's claim was emphasised by the fact that if CKFM were to go into liquidation, he would cease to have any interest, and in respect of standing, the instant case could not be distinguished from Durayappah v Fernando (1967) 2 AC 337. All that could be said was that the decision in Durayappah had been overtaken by subsequent developments in administrative law, and, on that assumption, the issues both of delay and of standing should be considered flexibly; the more important the arguable issue, the stronger its apparent merits, the more ready the court should be to grant standing, and the less strict in requiring promptness in the commencement proceedings.


Mr Grierson's delay had not been so bad that the court should refuse to countenance the grant of permission irrespective of the merits of his claim.


Accordingly, the court should consider the merits of Mr Grierson's case, taking the derivative nature of his interest and the question of delay into account. The fact that his interest was merely derivative was of substantial importance on the issue of standing. It was only in the most exceptional cases that the court could embark on an examination of the particular points awarded by Ofcom to an applicant, and Mr Grierson's case was not such an instance. There was no perversity in Ofcom's statement of reasons for awarding the licence to Atlantic when it gave the characteristics of the market as the justification for giving the criterion in section 105(c) of the Broadcasting Act 1990 a particular weight.


On the evidence, Mr Grierson had also failed to demonstrate that the assessment of Atlantic's business plan had been irrational or that there had been any mistake of fact in relation to Atlantic's application. The case for refusing Mr Grierson permission would be even stronger under the test of whether a case was likely to succeed if it were granted; Mass Energy Ltd v Birmingham CC (1994) Env LR 298 applied.


Mass was also encouragement to the court to apply a flexible test to the question of permission, one that took account of the matter of the financial consequences to an innocent party of granting permission.






EMPLOYMENT


Demonstrations - industrial action - interim injunctions - liability of union - industrial tort

Gate Gourmet London Ltd v Transport & General Workers Union and others: QBD (Mr Justice Fulford): 21 August 2005


Where there was an arguable case that union officials had authorised unlawful activities at a picket, an interim injunction could be made against that union prohibiting any activity that went beyond peaceful approaches being made to employees.


The applicant catering company, Gate Gourmet, applied without notice for an interlocutory injunction, in relation to strike action outside its premises, to limit the number of picketers and to confine their activities to peaceful protests, and insofar as it was within its authority to order the respondent trade union to ensure its members' compliance.


Many of Gate Gourmet's employees had taken unballoted strike action in response to proposed staff reductions and working practice changes. The union, which was the recognised union for a majority of the employees, supported the picketing that ensued at two sites outside Gate Gourmet's premises, and had a strong and regular presence there. Some of the picketing went beyond what was lawful and involved intimidating and threatening behaviour towards employees who were still at work.


David Griffith-Jones QC, James Tayler (instructed by Clarkslegal, Reading) for the applicant; Damian Brown (instructed by Thompsons, London) for the respondent.


Held, under section 20 of the Trade Union and Labour Relations (Consolidation) Act 1992, a union could be sued for 'industrial torts'. There was a clear, arguable case that the union over the relevant period had fully appreciated and understood the types of unlawful and tortious activity that were being routinely perpetrated. It was arguable that specific officials had authorised those activities and were organising or co-ordinating the industrial action. The union had not repudiated the unlawful activity; therefore it was right to direct the interim injunction against it. There was a serious question to be tried as regards the kinds of unlawful behaviour that were being carried out. The balance of convenience lay firmly in favour of expressly prohibiting any activity that went beyond peaceful approaches being made to current employees. Both the code of practice on picketing and the criminal law prohibited, among other things, unlawful threats or assaults, harassment, obstruction of the highway, and the use of offensive gestures if they amounted to an unlawful threat or harassment. Given that the unlawful activities were occurring mainly away from the two picket sites, it would be premature to limit the number of picketers at the site further from Gate Gourmet's premises.


However, picketers at that site would not be permitted to approach or talk to employees who were going to or from work, even though this restriction would curtail one of the customary lawful activities of picketing. At the other site, which was immediately across the road, the number would be limited to six. The repeated unlawful events justified these restrictions.


Application granted.




Disclosure - employment tribunals - notes - oral evidence - previous statements - privilege

Wendy Comfort v Department for Constitutional Affairs (2005): EAT (Mr Justice Burton (President)): 4 July 2005


Full notes of evidence taken by a solicitor at an employment tribunal hearing, excluding any comments or annotations, were not protected by privilege. Such notes were not ordinarily to be the subject of an order for disclosure or exchange. However, it was appropriate, on the facts of the instant case, to allow disclosure.


The appellant former employee, Ms Comfort, appealed against a decision of an employment tribunal limiting the extent to which the respondent Department for Constitutional Affairs (DCA) was required to disclose notes taken by its solicitor during previous employment tribunal proceedings involving both parties. She had previously brought proceedings against the DCA for unlawful disability discrimination, unfair constructive dismissal and breach of contract by reference to alleged redundancy. She was unsuccessful before the employment tribunal and the Employment Appeal Tribunal, but upon appeal to the Court of Appeal she had her case remitted to the employment tribunal. In the instant proceedings, in the absence of detailed chairman's notes from the previous proceedings, the DCA's solicitor volunteered to disclose a limited number of notes made in relation to the evidence given by two witnesses before the tribunal in the previous proceedings. Ms Comfort sought disclosure of the balance of the DCA's solicitor's notes relating to the evidence taken from other witnesses at the tribunal hearing. At a case management hearing, it was determined that the DCA was not required to disclose them.


Ms Comfort submitted that the notes were not protected by privilege, as the information they contained was not confidential because it related to evidence given in open court, and further the notes did not involve any evaluation or subjectivity on the part of the DCA's solicitor.


Naomi Cunningham (instructed by Charles Russell, London) for the appellant; Ingrid Simler (instructed by the Treasury Solicitor) for the respondent.


Held, the notes taken by the DCA's solicitor, excluding any comments or annotations, were not protected by privilege; Lambert v Home (1914) 3 KB 86 CA applied.


Such notes were not ordinarily to be the subject of an order for disclosure or exchange. The mere fact that very full and helpful notes of two witnesses had been produced and that the previous tribunal chairman's notes were not as full as one would have wished was not sufficient of itself to lead to the disclosure of the balance of the DCA's notes. On the facts of this case, it was appropriate to order disclosure of the notes in relation to two further witnesses in order to allow Ms Comfort to determine whether it was possible to raise an argument of previous inconsistent statement in relation to those witnesses at the remitted hearing.


Appeal allowed.






INSURANCE


Conflict of laws - allocation of jurisdiction - anti-suit injunctions - jurisdiction clauses - misrepresentation - reinsurance contracts

(1) Dornoch Ltd (on its own behalf & on behalf of the underwriting members of syndicate 1209) (2) Aegis International Insurance Ltd (3) Wurttembergische Versicherungs Ag (4) Catlin Syndicate Ltd (Formerly Catlin Westgen Ltd) (on its own behalf & on behalf of the underwriting members of syndicate 1003) (5) Atrium Underwriters Ltd (on behalf of underwriting members of syndicate 609) v (1) The Mauritius Union Assurance Co Ltd (2) The Mauritius Commercial Bank Ltd: QBD (Comm) (Mr Justice Aikens): 19 August 2005


On the facts, England was the appropriate forum in which to determine a dispute between the parties relating to liability on a reinsurance contract.


The defendant companies applied for a stay of the instant proceedings brought by the claimant reinsurers and for orders setting aside both permission to serve the instant proceedings out of jurisdiction in Mauritius and anti-suit and anti-anti-suit injunctions granted to the claimant reinsurers in relation to proceedings in Mauritius. The first defendant (MUA) underwrote bankers' blanket insurance for the second defendant (MCB). Both defendants were domiciled in Mauritius. MCB was involved in proceedings against MUA in Mauritius in relation to a claim made on an insurance policy. The policy was reinsured in the London market by C. In the instant proceedings, the claimant reinsurers sought a declaration that the reinsurance policy had been avoided and they were not liable to MUA, and sought damages against MUA and MCB for misrepresentation, deceit or negligent misstatement. The claimant reinsurers were subsequently joined as defendants to the proceedings in Mauritius. The key issues were whether there was an exclusive jurisdiction clause in favour of the Mauritius courts in the contract for the reinsurance; England was clearly and distinctly the convenient forum in which to determine the disputes between the claimant reinsurers and MUA and between the claimant reinsurers and MCB; it was appropriate to set aside the anti-suit and anti-anti-suit injunctions the claimant reinsurers had obtained in relation to the proceedings in Mauritius.


Michael Swainston QC, Alan Maclean (instructed by Clyde & Co, London) for the claimants; Ali Malek QC, Mark Humphries (solicitor-advocate) (instructed by Linklaters, London) for the first defendant; Gavin Kealey QC, David Bailey (instructed by Clifford Chance, London) for the second defendant.


Held, (1) MUA had not established a good arguable case that the reinsurance contract contained a Mauritius jurisdiction clause. The words of the contract did not embrace a jurisdiction clause. Although the parties might have intended to agree the wording of a jurisdiction clause, they had failed to do so. (2) It was not possible to determine whether the parties had chosen the law applicable to the reinsurance contract in accordance with article 3(1) of the Rome Convention. The applicable law was therefore that of the country with which the contract was most closely connected, presumed under article 4(2) of the convention to be where the party that was to effect the performance characteristic of the contract had its central administration. The characteristic performance of a reinsurance contract was the payment of reinsurance in the event of a valid claim being made. The claimant reinsurers were based in England. There was a good arguable case that the applicable law of the reinsurance was English law. Despite factors indicating that Mauritius would be the appropriate forum, in particular the need to investigate C's allegations of non-disclosure and misrepresentation in Mauritius, the weight of factors in favour of England as the appropriate forum was far greater than that against. It was not appropriate to stay the proceedings against MUA or to set aside the permission granted to the claimant reinsurers to serve out of jurisdiction. (3) There was a good arguable case that the applicable law of torts alleged against MCB was English law. The weight of factors in favour of England as the appropriate forum, combined with the fact that the court was satisfied that England was the appropriate forum for the dispute between the claimant reinsurers and MUA, made it clearly appropriate for the dispute between the claimant reinsurers and MCB to be heard in England as well. It was not appropriate to stay the proceedings against MCB or to set aside the permission granted to the claimant reinsurers to serve out of jurisdiction. (4) Whilst England was the more appropriate forum than Mauritius for the instant proceedings, the fact that the claimant reinsurers were joined to the proceedings in Mauritius was not vexatious or oppressive. It was appropriate to discharge the anti-suit and the anti-anti-suit injunctions. Applications granted in part.






EDUCATION


Adjudicators - denominational schools - quashing orders - school admissions - school governors - school adjudicator's powers - admissions objections in successive years

London Oratory School Governing Body (claimant) v Schools Adjudicator (defendant) & (1) Secretary of State for Education and Skills (2) Peterborough Primary School Governing Body (interested parties): QBD (Admin) (Mr Justice Crane): 12 August 2005


Where, in the previous year, a court had quashed a decision of the schools adjudicator in respect of an objection to the admission arrangements for a particular school, there was no surviving decision for the purposes of regulation 9(1) of the Education (Objections to Admission Arrangements) Regulations 1999 and therefore a similar objection in respect of that school could be referred to the adjudicator the following year.


The governors of the London Oratory applied for judicial review of a decision of the schools adjudicator that he had jurisdiction to determine an objection from the governors of a primary school to the Oratory's admission arrangements.


The primary school governors objected to the Oratory's practice of interviewing as part of their admission process. The issue concerned criteria relating to religion. The adjudicator had upheld a similar objection made in the previous year. However, on judicial review, the court had quashed that decision on the basis that it would be Wednesbury unreasonable for the adjudicator to force the Oratory at a late stage to change its admission process by omitting interviews. The court had not remitted the matter back to the adjudicator as there was only one decision that the adjudicator could lawfully take, namely to dismiss the primary school governors' objection. The issues were whether: (i) the objection made in the previous year had been 'decided by the adjudicator or secretary of state' within the meaning of regulation 9(1); and if so (ii) that prevented the primary school governors' similar objection being referred to the adjudicator within the meaning of regulation 9(1). The governors of the London Oratory submitted that (1) although the adjudicator would normally decide on an objection, the court had the power, and had exercised that power under CPR rule 54.19(3), to make a decision where an objection had been quashed and where there was no purpose in remitting the matter to the decision-maker; (2) there should be a purposive construction of regulation 9(1) to include a case where the court had made a decision.


Nigel Giffin QC (instructed by Payne Hicks Beach, London) for the claimant; Clive Lewis (instructed by Treasury Solicitor) for the defendant.


Held, the duty of the adjudicator was to decide whether an objection should be upheld and to decide on the merits where practicable. However, where it was impracticable for the adjudicator to decide on the merits because of delay caused by legal proceedings or other causes, the adjudicator could decide not to uphold the objection. Such a decision would be a decision for the purposes of regulation 9(1), although not a decision on the merits. However, in the instant case, there was no surviving decision in the previous year and certainly no decision of the adjudicator on the merits. The court had neither remitted the matter for decision nor taken a decision. The court had therefore not exercised its power under CPR rule 54.19(3). (2) There should be a purposive interpretation of regulation 9(1). One purpose was to avoid a school having to meet objections in successive years. However, it was clearly the overall purpose of section 90(3) of the School Standards and Framework Act 1998 and regulation 9(1) that objectors should, if practicable, obtain an adjudicator's decision on their objection on its merits. Application refused.