CIVIL PROCEDURE

Advocates - bias - judges - litigants in person - recusal - approach to criticism from litigant in person

Ashley Dobbs v Triodos Bank NV (2005): CA (Civ Div) (Lords Justice Chadwick, Longmore and Neuberger): 15 April 2005



Where a litigant in person stated that judges in general or those assigned to hear his case were likely to favour the submissions of professional advocates, the judges concerned should resist the temptation to cease hearing the case.


The applicant litigant in person (D) applied to stay proceedings issued against him. D considered that the judiciary was likely to favour arguments from professional advocates over arguments advanced by unrepresented litigants.


The applicant in person; Neil Levy (instructed by TLT Solicitors, Bristol) for the respondent.


Held, it was important for a judge to resist the temptation to recuse himself, when a litigant had criticised him, simply because it would be more comfortable to do so. If judges were to recuse themselves whenever a litigant criticised them, they would soon reach the position where litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised, whether that criticism was justified or not. That would apply not only to the individual judge but to all the judges of the court. In the instant case, the fact that the judge had been criticised by D for his past conduct was not a good reason for him to recuse himself. Application refused.





EUROPE


Freedom of assembly and association - freedom to provide services - free movement of goods - peaceful enjoyment of possessions - proportionality - right to respect for home - right to respect for private and family life - ban on hunting with dogs - interference with human rights

(1) Countryside Alliance & ors (2) Frances Derwin & ors (3) Brian Friend & Hugh Thomas (claimants) v (1) Attorney-General (2) Secretary of State for the Environment Food & Rural Affairs & anor (defendants) & RSPCA (intervener): DC (Lord Justice May, Mr Justice Moses): 29 July 2005


The claimants applied for judicial review of the Hunting Act 2004, challenging its lawfulness and integrity. The Act, which imposed an outright ban on hunting with dogs, subject to exceptions, had been supported by a large, cross-party majority of the House of Commons but did not represent the policy of the government.


The government had proposed that the hunting of fox, hare and mink be permitted, subject to registration of those involved. The Act was challenged on both human rights and European law grounds.


The claimants' broad arguments were that the Act was a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conducted their lives and with market freedoms protected by European law, and an unjust interference with economic rights.


They said that the Act was oppressive legislation, enacted irrationally by a majority of the members of the House of Commons who had rejected the rational compromise promoted by the government and which, far from achieving its aim of preventing cruelty to animals, would in fact promote such cruelty.


Those claimants relying on human rights grounds argued that their rights under articles 8, 11, and 14, and article 1 of the first protocol of the European Convention on Human Rights had been infringed. Those claimants relying on the European law grounds cited breaches of article 28, article 39 and article 49 of the EC Treaty.


Richard Gordon QC, Richard Lissack QC, Nicholas Bowen, Robert Jan Temmink (instructed by Allen & Overy, London) for the first claimants; David Anderson QC, Marie Demetriou (instructed by Clifford Chance, London) for the second claimants; the third claimants in person; Philip Sales, Jason Coppel, Tom de la Mare (instructed by the Treasury Solicitor and the Solicitor, Department for Environment Food and Rural Affairs) for the defendants; Rabinder Singh QC, Kate Cook (instructed by Herbert Smith, London) for the intervener.


Held, the 2004 Act did not infringe any article 8 rights. As regards infringement of the right to respect for private life, although those claimants for whom hunting was a core way of life or central to their main business or employment were reasonably close to the borderline for purposes of article 8(1) of the convention, on balance they had not crossed the border, Sidabras v Lithuania (2004) considered.


Nor was any claimant's right to respect for the home engaged. The object of article 8 was to protect the individual against arbitrary interference by public authorities with his right to privacy and not with protection of his right to own or occupy property. In the instant case, the court was not concerned with eviction by a public authority but rather with whether the possible loss of some claimants' homes, held under tenancies with private landlords, as an indirect consequence of the hunting ban constituted interference with article 8(1).


The court took the view that it did not, Sheffield City Council v Smart [2002] EWCA Civ 4, [2002] ACD 56 considered, Harrow LBC v Qazi [2003] UKHL 43, [2004] 1 AC 983 applied, Connors v United Kingdom [2005] 40 EHHR 9 distinguished.


Although the effect of the ban on hunting was to inhibit or impede the claimants' freedom of assembly or association, the prohibition it entailed had only an indirect effect on the freedoms protected by article 11 of the convention and thus did not fall within its scope.


While for some claimants there had been a significant interference with their right under article 1 of the first protocol of the convention to peaceful enjoyment of their possessions, that interference mainly, if not entirely, constituted control of use, not deprivation. That distinction was relevant to the question of whether those claimants were entitled to compensation. Where there was legislative control of property, as opposed to deprivation, article 1 did not normally give rise to a right to compensation.


Article 14 of the convention was not engaged where membership of the hunting community was not a personal characteristic amounting to 'other status', R (on the application of Marper) v Chief Constable of South Yorkshire [2004]) UKHL 39, [2004] 1 WLR 2196 considered.


There was no dispute that hunters and greyhounds previously exported from Ireland into the UK were 'goods' within the meaning of article 28 of the EC Treaty (Nice).


In order to establish that a legislative provision came within the prohibition in article 28 by reason of it having an equivalent effect to that of a quantitative restriction on imports, it was necessary to show that it had a greater effect on intra-community trade than it did on internal trade, (C267/91) criminal proceedings against Keck (1993) ECR 1-6097 applied. In the instant case, the impact on the free movement of hunters and greyhounds from Ireland was no greater than that within the UK.


The provision of services in connection with hunting to recipients in other member states, by some claimants, fell within the ambit of article 49 of the EC Treaty (Nice).


Contrary to argument made by the defendants, the Keck principle did not apply to article 49, (C36/02) Omega Spielhallen und Automatenaufstellungs GmbH v Bundesstadt Bonn [2005] 1 CMLR 5 and (C405/98) Konsumentombudsmannen (KO) v Gourmet International Products AB [2001] ECR 1-1795 applied.


Considering the issue of justification and proportionality in relation to article 8, article 11 and article 1 of the first protocol of the convention and article 49 of the Treaty, the Act had a legitimate aim, it was rationally related to that aim, went no further than was necessary to achieve that aim, was necessary in a democratic society and satisfied the test of proportionality; and Parliament had had sufficient evidential material to reach such conclusions on a rational basis, Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2003] UKHRR 1085 applied.


The legislative aim of the Act was a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport was unethical and should, so far as was practical and proportionate, be stopped. It had been rationally open to the House of Commons to espouse a different or modified legislative aim from that of the government. Applications refused.





HEALTH


Primary care trusts - residential care - right to respect for private and family life - independent user trusts

Rachel Gunter (by her litigation friend, Edwin Gunter) v South Western Staffordshire Primary Care Trust: QBD (Admin) (Mr Justice Collins): 26 August 2005


A primary care trust's powers under the National Health Service Act 1977 to do what appeared necessary to achieve the provision of services could involve a voluntary organisation such as an independent user trust (IUT) as the supplier.


The claimant, Ms Gunter, applied for judicial review of the decision of the defendant primary care trust that the preferred option for her care was a residential package.


She had had problems since birth, having had a tumour removed which had resulted in blindness. She also suffered from diabetes insipidus and therefore had problems in maintaining fluid balance within the body, and had had several strokes.


She required 24-hour nursing care. Care had been provided by one parent at home, with private 24-hour nursing support. The need for a long-term solution was prompted by the parents wishing to withdraw from 'hands-on' care.


The trust decided that a residential package was the preferred option. The main factors in favour were cost and the view that there was less risk if a crisis developed and there was a need for immediate specialist attention.


Ms Gunter applied for judicial review on the basis that the trust should provide a 24-hour, seven-days-a-week care package which allowed her to continue to live in the family home. She submitted that an IUT, which had been used as a vehicle for the provision of assistance by local authorities to those with disabilities, could and should be put in place.


Ian Wise (instructed by Irwin Mitchell, Sheffield) for the claimant; Roger McCarthy QC (instructed by Mills & Reeve, Birmingham) for the defendant.


Held, to remove Ms Gunter from her home would interfere with her right to respect for her family life within article 8 of the European Convention on Human Rights.


Parliament had deliberately given very wide powers to primary care trusts under section 23 and paragraph 12 of schedule 5A of the 1977 Act to enable them to do what in any given circumstances seemed to them necessary to achieve the provision of services.


That could involve the use of a voluntary organisation such as an IUT as the supplier. Although the power existed, there were a number of practical problems that might make the suggested arrangement impossible to achieve.


Ms Gunter's case had to be reconsidered. The possibility of an IUT with the substantial saving in cost that it might produce for care at home should be explored. Ms Gunter and her parents could not assume that home care would necessarily result. No form of mandatory order was appropriate. Application granted.





INTELLECTUAL PROPERTY


Freedom of expression - public policy - registration - word marks - prohibition of registration - religious significance - objective test - anti-social branding - causing offence - exercise of judgment - prevention of disorder - protection of morals

In the matter of Basic Trademark SA's trade mark applications (nos 689374 and 776058) (2005)


The Registrar of Trade Marks had correctly concluded that the use of the word JESUS as a trade mark would cause greater offence than mere distaste and do so to a significant section of the general public and was accordingly contrary to public policy or to accepted principles of morality, and was excluded from acceptance by section 3(3)(a) of the Trade Marks Act 1994.


The applicant company (B) appealed against the refusal of its application to register the word JESUS as a trade mark in relation to clothing and accessories in several classes.


The Registrar of Trade Marks had rejected the application on the basis that most people in the UK would associate JESUS with the name of Jesus Christ and that the use of it as a trade mark in relation to the goods for which registration was sought would cause greater offence than mere distaste to a significant section of the general public.


The registrar concluded that the trade mark applied for was contrary to public policy or to accepted principles of morality and was therefore excluded from acceptance by section 3(3)(a) of the Trade Marks Act 1994. B argued that (1) religious significance was not sufficient to render a mark unregistrable under section 3(3)(a); (2) no legal, moral or ethical imperative prevented registration of the word JESUS as a trade mark for use in relation to goods of the kind specified by B; and (3) the registrar had overlooked or ignored the need to apply a test capable of providing an objective answer to the question that had to be determined under section 3(3)(a).


Non-counsel representatives (instructed by Beck Greener, patent and trade mark attorneys, London) for the applicant; Allan James for the Registrar of Trade Marks.


Held, it was too narrow a view to say that trade marks could not be regarded as objectionable under section 3(3)(a) simply by virtue of the degree of religious significance they possessed.


Branding that employed words or images of religious significance could quite easily have a serious troubling effect on people whose religious beliefs it impinged upon and others who were of the view that religious beliefs should be treated with respect in a civilised society.


It was necessary to interpret and apply the prohibition in section 3(3)(a) consistently with the provisions of the European Convention on Human Rights and the disciplined approach required by article 10 for the restriction of the right to freedom of expression.


The fact that the determination under section 3(3)(a) called for the exercise of judgment in an area where there might be room for more than one view did not, of itself, render the decision-taking process arbitrary, nor did the fact that the determination depended on the decision-taker's assessment of the effect that use of the trade mark in question was liable to have on other people.


The requirement for use of the trade mark to be seriously troubling in terms of the public interest in the prevention of disorder or protection of morals under article 10 of the convention provided a proper basis for objective determination of the legal rights of persons applying for registration.


There was no basis for thinking that the decision in the instant case was made arbitrarily or lacked objectivity. It was legitimate to apply the prohibition in section 3(3)(a) to branding that was anti-social by reason of its ability to undermine an accepted social and religious value to a significant extent. Appeal dismissed.





MENTAL HEALTH


Funding - primary care trusts - restricted patients - leave of absence from hospital - direction of responsible medical officer - hospital managers balancing clinical and resource considerations - high-security hospitals - medium-security hospitals - private sector hospitals

R (on the application of K) v West London Mental Health NHS Trust (2005): QBD (Admin) (Mr Justice Lightman): 6 July 2005


The claimant (K), a restricted patient, applied for judicial review of the decision of the defendant mental health NHS trust not to fund his placement at a hospital in the private sector.


K was a patient at the high- security hospital at Broadmoor. The defendant trust was responsible for K's healthcare needs. K wanted to transfer to a medium-secure hospital, which was in the private sector. K's responsible medical officer (RMO) supported that move. Section 17 of the the Mental Health Act 1983 provided that the RMO, in respect of a patient detained in a mental hospital, could grant to that patient leave to be absent from that hospital and direct that during the leave of absence he resided in another hospital.


The responsible NHS consultant forensic psychiatrist considered that K's mental state was such that his placement in Broadmoor was entirely appropriate, he was not suitable for transfer to the trust's NHS medium-security hospitals, and that it would be premature to transfer K out of Broadmoor.


The issue was whether, when the RMO had granted a patient leave under section 17 directing that he reside in a private-sector hospital, it was open to the primary care trust responsible for funding the patient to refuse to fund the stay of the patient at that private hospital, either on the grounds of clinical judgment or by reason of resource considerations.


Nathalie Lieven (instructed by Scott-Moncrieff Harbour & Sinclair, London) for the claimant; Jeremy Hyam (instructed by Capsticks, London) for the defendant.


Held, (1) the leave of absence to be granted by the RMO under section 17 of the 1983 Act was something different from the transfer, which could only be authorised by the managers under section 19. The leave of absence was for any short absence or stay away from the hospital, for example to attend a wedding or funeral or for a trial stay at a different hospital. The grant of the leave of absence might or might not involve some expenditure, for example in respect of the cost of transport or a stay elsewhere. As a matter of principle, it could not be appropriate to construe section 17 as providing that, in granting leave of absence, the RMO was statutorily empowered to authorise, on behalf of his health authority, any expenditure involved. The RMO decided on clinical grounds whether or not leave of absence (and, in particular, leave of absence requiring a stay in another hospital) should be granted, but the hospital managers decided whether its resources could and should be expended in funding the recommended stay. The managers had to evaluate and balance the clinical and resource considerations.


(2) On the facts of the instant case it was clear that the decision of the trust not to fund K's stay at the private hospital was based on clinical reasons and not on resource considerations. The decision of the trust that K was not clinically fit to leave Broadmoor and to stay at any medium-secure hospital was not Wednesbury unreasonable.


In the light of K's history and the relevant evidence as a whole, the decision of the trust that clinical considerations did not merit or allow for such a stay was one that the trust could reasonably reach. Application refused.





PARTNERSHIP


Apparent partners - holding out - partners' liabilities - opening of bank account - representation made without authority - bank accounts - trading as - cheques

Elite Business Systems UK Ltd v Huw Price (2005): CA (Civ Div) (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Dyson and Wall): 27 June 2005


The opening of a bank account by a father for use in his son's business was not objectively calculated to give rise to third parties concluding that father and son were conducting the business in partnership, and did not authorise the son to represent that he was trading in partnership with his father.


The appellant (P) appealed against the judgment given in favour of the claimant (E) in the sum of £105,522.27, plus interest, in relation to mobile phones supplied by E to P's son.


P's son had wanted to set up in business as a dealer in mobile phones. The son had no banking facilities and P had opened an account in his own name that could be used to receive and make payments for his son. The wording on the cheques to be drawn on the account stated 'H Price t/a Price Communication'. The son entered into an agreement with E in the name of Price Communications. Without P's knowledge, the son stated in the agreement that P was a partner in the business. The judge held that because P had been held out as a partner on the cheques, he was to be treated as a partner by virtue of the section 14(1) of the Partnership Act 1890.


Siward Atkins (instructed by Morgan de la Roche, Swansea) for the appellant; Jeffrey Deegan (instructed by EMW LAW, Northampton) for the respondent.


Held, the only representation on which E could rely as falling within section 14(1) of the 1890 Act was that made by the son in the agreement with E. P did not knowingly suffer that representation to be made and accordingly was not liable under the section. The representation made by the son was untrue and made without authority. The judge's reasoning had been flawed. The bank account did not represent that P was in partnership with his son in the name of Price Communications; it simply stated that P was trading as Price Communication. Opening the account was not objectively calculated to give rise to third parties concluding that father and son were conducting the business of Price Communications in partnership and did not authorise the son to represent that he was trading in partnership with his father. Appeal allowed.