IMMIGRATION

Asylum seekers - human rights - Iraq - jurisdiction - persecution - removal directions - torture - enforced returns - safe routes

GH v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Keene, Scott Baker): 12 October 2005



The appellant asylum seeker (H) appealed against the refusal of leave to enter the UK.


H was a Kurd from Iraq who had lived in the Kurdish Autonomous Area (KAA). H had entered the UK in 2000 and claimed asylum on the basis that he had been tortured in the KAA and remained at risk there, and that he could not return to government-controlled Iraq because he would be detained and tortured as a supporter of the Kurdish opposition.


The secretary of state refused his claim on the basis that after the change of regime in 2003, H could safely return to the area. Nevertheless, the secretary of state did not issue any removal directions because of the situation in Iraq. H's appeal to an adjudicator under section 82 of the Nationality, Immigration and Asylum Act 2002 was dismissed.


The Immigration Appeal Tribunal (IAT) dismissed a further appeal in which H had raised the issue of the mechanics of returning to his home area in Iraq. The IAT held that it was not concerned with the practicalities or logistics of H's return but with whether there was a well-founded fear of persecution in H's own home area.


H submitted that on an asylum and human rights appeal under section 82 of the Act, the immigration appellate authority could and should take into account what might happen in the course of the appellant being removed from the UK and travelling to his safe home area in the country concerned.


Simon Cox (instructed by Harrison Bundey) for the appellant; for the respondent: Lisa Giovannetti (instructed by the Treasury Solicitor) for the respondent.


Held, normally removal directions were quite separate and distinct from the immigration decision. Ordinarily, they followed the prior decision to remove in principle. That was a two-stage process.


The fact that the Act did not include removal directions within the description of immigration decision against which there was a right of appeal under section 82 indicated that there was no free-standing right of appeal against removal directions.


The Act had made a change from the position under the previous Act, where removal directions were capable of attracting a right of appeal (R v Secretary of State for the Home Department, ex parte Kariharan [2002] EWCA Civ 1102, [2003] QB 933 considered). There was no jurisdiction to hear an appeal against removal directions and the remedy in the case of allegedly unlawful directions was judicial review.


Section 84(1)(g) of the Act was wide enough to permit the appeal tribunal to consider the route of return where directions had been given at the same time as an appealable immigration decision or where there was an established route of return which it was known would be used.


H's appeal faced an insuperable difficulty in that no removal directions had been set in his case. Thus H's method or route of return to his home area could not be known, and consequently he was in no position to establish either a well-founded fear of persecution or a risk amounting to a breach of his human rights arising solely as a consequence of the method or route of return to his home area.


What directions the secretary of state decided to give in future was a matter for him. If, when they were given, it was contended that they were unlawful, the remedy would be judicial review. Appeal dismissed.





CRIMINAL


Procedure - criminal evidence - sentencing - breach - burden of proof - community rehabilitation orders - identification

West Yorkshire Probation Board v Boulter: DC (Lord Justice Keene, Mr Justice Poole): 6 October 2005


The appellant probation board appealed by way of case stated against a decision of justices that a breach of a community rehabilitation order (CRO) attracted a standard of proof up to the criminal standard.


The board further appealed against a decision of the justices that coincidental personal information of a person subject to a CRO and of the individual summonsed to court failed to prove identity beyond a reasonable doubt.


The respondent (B) had allegedly been made the subject of a CRO. Information was laid against B that he had failed to comply with the requirements of the order in that he had failed to attend for probation appointments. B appeared at an initial court hearing, but at all subsequent hearings B did not attend and was legally represented. B's legal representative contended that the board was required to prove every essential element of the alleged breach beyond reasonable doubt. That included proving the identity of B, which involved proving that the person subject to the CRO was in fact the same person who had been summonsed to court in relation to the alleged breach, and that the board had not provided such evidence.


The justices found that the name, date of birth and address of B were exactly the same as those of the person made subject to the CRO. The name was not common and as such, that gave rise to a case to answer; that the coincidence of the name, date of birth and address alone were insufficient to prove identity beyond reasonable doubt; and that the board had failed to prove an essential element of the breach, namely identity.


The board contended that breaches of community orders were not criminal offences as there was nothing in schedule 3, paragraph 4 of the Powers of Criminal Courts (Sentencing) Act 2000 to indicate that they were. The board argued that if the criminal standard of proof did apply in the instant case, there was sufficient evidence to convict B.


Katherine Robinson (instructed by Sharpe Pritchard) for the appellant; John Elvidge (instructed by Kingsley Brookes) for the respondent.


Held, criminal sentences required proof to the criminal standard. A breach of a CRO was not simply a breach of a court order. It was possible for an individual to be imprisoned for the first time as a consequence of breaching a CRO. As such, the proof of breach of a CRO was to the criminal standard (R v Gainsborough Justices, ex parte Green [1984] 78 Cr App R 9 and R (on the application of Smith) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350 considered).


Where justices had before them evidence that the person summonsed shared the same name, date of birth or address as the person who had been convicted, it was open to them to draw the inference that he was the same person. Whether such an inference was actually drawn was dependent on the facts of the case. However, where all three personal details coincided, it was to be expected that the justices would draw such an inference unless there was some other reason in the case that obviated such a conclusion.


In the instant case, there was sufficient evidence before the justices for them to have found that the board had proved that B was the individual subject to the CRO in question. Accordingly the case would be remitted with a direction to convict (R v Derwentside Magistrates Court, ex parte Heaviside [1996] 160 JP 317, Olakunori v DPP (unreported, 8 July 1998) considered). Appeal allowed.





EMPLOYMENT


Collective redundancies - dismissal - employee consultation - interpretation - protective awards

Leicestershire County Council v Unison: EAT (Judge McMullen QC, J Mallender, D Welch): 2 September 2005


The appellant local authority appealed against a decision that there had been a failure to consult a group of employees represented by the respondent trade union regarding proposals for mass dismissals, and that protective awards should be made in respect of two groups of those employees - the 'down-graded' group for 90 days and the 'enhancement' group for 20 days.


The local authority had introduced a job evaluation scheme. As a consequence of that process, it was likely that some employees would be upgraded, some downgraded to a lower salary bracket and some would stay the same.


The local authority also reviewed employees' enhancements such as unsociable hours and overtime payments.


The local authority made the decision to dismiss and then re-engage certain employees on new contractual terms. The employment tribunal found that although the formal political decision to proceed had been taken by the local authority's employment committee, in reality the decision had already been taken for all practical purposes since the bulk of the work necessary to carry out the decision had already been done.


The tribunal concluded that the formal announcement to the union had come at least a month after the relevant decision and placed the local authority in breach of its duty to consult 'in good time' under sections 188(1) and (2) of the Trade Union and Labour Relations (Consolidation) Act 1992.


The local authority contended that the tribunal had erred in law in its construction of 'proposing to dismiss' in section 188(1) as meaning less than a decision that dismissals were to be made and more than a possibility that they might occur; there had been no breach of the consultation requirements in respect of the enhancement group and any protective award should be minimal.


Elizabeth Slade QC, M Wyatt (instructed by the local authority solicitor) for the appellant; Helen Gower (instructed by the in- house solicitor) for the respondent.


Held, the tribunal had made findings as to the reality of proposing and deciding on redundancies within the local authority's employment relationship, and had come to the conclusion that not just a proposal but a decision had been made prior to the meeting of the employment committee. Given its correct approach to the relationship between officers and politicians within the local authority, its findings could not be challenged.


To give effect to the construction of Council Directive 98/59 that aimed to avoid dismissals for redundancy and required there to be consultation at a stage before decisions on dismissal for redundancy were made, the words 'proposing to dismiss' in section 188 would be construed as 'proposing to give notice of dismissal' (Junk v Kuhnel (C188/03) [2005] 1 CMLR 42 applied). The tribunal's approach to the construction of section 188 was therefore correct.


There was no error of law in the tribunal's award of the maximum period of 90 days in relation to the downgraded group. The fact that the local authority had achieved partial compliance with the requirement to provide information did not mean that there should be an automatic reduction. The tribunal was entitled to its criticism where there had been a deliberate refusal, intentionally carried out.


In relation to the enhancement group, the tribunal had failed to take into account mitigating circumstances in assessing the award (Susie Radin Ltd v GMB [2004] EWCA Civ 180 applied). This was not a case of a total failure to consult the employees, but simply of lateness. The primary finding of the tribunal was that there would have been full negotiations with the union to resolve the issues that would have included the prospect of avoiding dismissals as a way of achieving change. The protective award of 20 days would therefore be reduced to 10 days. Appeal allowed in part.





COSTS


Access to justice - freedom of expression - privacy - proportionality - success fees - conditional fee agreements - interference with European Convention on Human Rights

Campbell v MGN Ltd (2005): HL (Lords Nicholls of Birkenhead, Hoffmann, Hope of Craighead, Baroness Hale of Richmond, Lord Carswell): 20 October 2005


The petitioner newspaper group (M) sought a ruling that it should not be liable to pay the success fee of the respondent (C) on the ground that the liability was so disproportionate as to infringe its rights under article 10 of the European Convention on Human Rights.


C had successfully brought an action against M for breach of confidence. C funded her own litigation in the first two hearings, but in the House of Lords hearing she retained solicitors and counsel pursuant to a conditional fee agreement (CFA), which provided that if C succeeded, solicitors and counsel would be entitled to success fees of 95% and 100% respectively. The success fee M was liable to pay amounted to £279,981.35, which brought M's total liability for legal costs to £1,086,295.47.


M submitted that the award of costs increased by the success fee was necessarily disproportionate as it was substantially more than the amount that, under the ordinary assessment rules, a judge making an order for costs would consider reasonable and proportionate; it was not necessary to give C access to a court by way of a CFA because she could have afforded to fund her own costs and had done so in the lower courts; the threat of liability to pay a large sum by way of costs was likely to inhibit its rights under article 10.


James Price QC, Martin Farber (instructed by Schillings) for the respondent; Richard Spearman QC, Jeremy Morgan QC, Andrew Sharland (instructed by Davenport Lyons) for the petitioner.


Held, the test for proportionality under article 10 differed from that under rule 1.1 of the Civil Procedure Rules 1998, which was concerned with whether expenditure on litigation was proportionate to the amount at stake, the interests of the parties and complexity of the issues. Article 10 was concerned with whether a rule that required unsuccessful defendants not only to pay the reasonable and proportionate costs of their adversary in litigation, but also to contribute to the funding of other litigation, was a proportionate measure to provide those other litigants with access to justice. It was open to the legislature to choose to fund access to justice in that way.


Parliament had been entitled to lay down a general rule that CFAs were open to everyone, taking into account the impracticality of requiring a means test and the small number of individuals who would have sufficient resources to fund their own litigation. It was not relevant, therefore, whether on an assessment of C's means she needed a CFA. The success fee could not be disallowed simply on the ground that M's liability would be inconsistent with its rights under article 10. The scheme under which such liability was imposed was a choice open to the legislature.


Other problems caused by defamation litigation being brought under CFAs gave rise to a concern that rights under article 10 might be seriously inhibited (Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB) considered). The blackmailing effect of such litigation arose from the use of CFAs by impecunious claimants who did not take out after-the-event insurance, and conduct by claimants' solicitors in a way which not only incurred substantial costs for the claimant but required the defendant to do so as well (King v Telegraph Group Ltd [2003] EWHC 1312 QA considered).


It was possible that costs could be capped at an early stage, pre-empting the assessment of the judge by fixing a maximum amount including any success fee (King considered). However, the responsibility for monitoring and controlling the new costs regime lay with the Court of Appeal and the instant court would be slow to interfere (Callery v Gray [2001] EWCA Civ 1117, [2001] 1 WLR 2112 considered).


Defamation cases involved a small number of claims and payment of relatively large sums of costs. Such payments could have serious effects on the financial position of publishers which did not have the same negotiating strength as liability insurers because there were few assessments to be contested and contesting them involved considerable additional costs. Proportionality was the ultimate controlling factor that a court must apply. The rights and interests of both sides must be considered and weighed up against each other in deciding whether, having regard to the interests at stake, the amount was proportionate.


However, the regimen of CFAs and the imposition of charges upon the losing party was legislative policy that the courts had to accept. Petition dismissed.


For related proceedings see Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457.





CONTRACT


Agreements to sell - misrepresentation - rescission - sale of insolvent company - unlawful means conspiracy

(1) Geoffrey Mark Street (2) Joan Margaret Street v (1) Clive Melvin Coombes (2) Martin Shears (3) International Interiors UK Ltd (4) Briton Pearce: ChD (L Henderson QC): 12 October 2005


The claimants (S) claimed for breach of contract against the first defendant (C) and for unlawful means conspiracy against all four defendants. C counterclaimed that the contract had been discharged or rescinded for misrepresentation.


S had agreed to sell the entire issued share capital of a private limited company (X) to C. Prior to the signing of the agreement, S had represented to C that X was solvent. Two days after the signing of the agreement, C formed a new company, the third defendant, with a name very similar to that of X. A month later, X was placed in administrative receivership and the agreement was never completed.


C sought, by means of a letter from his solicitor, to rescind the agreement for misrepresentation or to discharge the agreement for breach. S submitted that C had set up the new company without their knowledge for the purpose of defrauding X. Debts owed to X, and its work in progress, were then diverted to the new company, resulting in X's insolvency.


C submitted that S had misrepresented X's financial position to him to induce him to enter into the sale agreement and that he was entitled to and had rescinded the agreement by means of a letter from his solicitors to S.


Michael Norman (instructed by Paris Smith & Randall) for the claimants; Ashley Ailes (instructed by Cross Keech) for the first and second defendants; Michael Roberts (instructed by Lester Aldridge) for the fourth defendant.


Held, the representations made by S to C before the agreement was signed were false and went to the heart of X's financial position. S had misleadingly portrayed X as a company that was hovering on the brink of insolvency instead of one that was already heavily insolvent and had been for a considerable time.


The representations were intended to induce C to enter the agreement and did in fact operate as a substantial inducement to C. C had thought he was buying a company with a zero balance sheet but with good future prospects which he would bring to fruition.


As there was nothing in the sale agreement negating C's right to rescind the agreement and C had not by his actions affirmed the agreement, the letter from C's solicitors seeking to rescind the agreement was valid and C was entitled to damages. S's attempt to enforce the sale agreement against C was devoid of merit as was S's claim for unlawful means conspiracy against all four defendants. Judgment for defendants.