CIVIL PROCEDURE

Applications without notice - claim forms - extensions of time reasonableness - service

Collier v Williams; Marshall Rankine & anor v Maggs; Leeson v Marsden & anor; Glass v Surrendran: CA (Civ Div) (Lords Justice Waller, Dyson, Neuberger): 25 January 2006



The appellants (C, M, L and G) appealed against decisions that raised points as to the proper interpretation of part 6 and rule 7.6 of the Civil Procedure Rules.


C's case was concerned with the proper interpretation of rules 6.4(2) and 6.5, where a claim form had been served on a firm of solicitors nominated by an insurance company for that purpose, but the nominated solicitors had not informed the serving solicitors that they were authorised to accept service.


M's case was concerned with an extension of time for the service of a claim form where M had served a form on the respondent (R) at what he thought was R's last known address when R no longer resided at that address.


L's case was concerned with a without-notice application for an extension of time in which to serve the form, which had been refused on paper but was then reconsidered by the court. G's case was also concerned with an application to extend the time for service of the form.


The issues for determination were the proper construction of rules 6.4(2) and 6.5; whether a court had jurisdiction to reconsider an application made without notice and on paper; and whether the guidance in Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206 was being properly followed.


Christian Sweeney (instructed by Coles Miller) for the appellant Collier; Glyn Edwards (instructed by Lyons Davidson) for the respondent Williams; Nik Yeo (instructed by Russell-Cooke) for the appellant Rankie; Andrew Butler (instructed by Forsters) for the respondent Maggs; Christopher Sharp QC, John Livesey (instructed by John Hodge) for the appellant Leeson; Michael de Navarro QC (instructed by Radcliffes Le Brasseur Bevan Brittan) for the respondent Marsden; Ronald Walker QC (instructed by Berrymans Lace Mawer) for the appellant Glass; K Naylor (instructed by Neil Millar & Co) for the respondent Surrendran.



Held, the language of the rules compelled the conclusion that, where a defendant had given the claimant a solicitor's address for service, the claim form may be validly served at that address by one of the permitted methods of service. Rule 6.4(2) served one purpose only, which was to prevent personal service where a solicitor was authorised to accept service and had notified the serving party in writing that he was so authorised. The phrase 'no solicitor acting' in rule 6.5 could be interpreted as meaning that there was 'no solicitor acting so that he can be served'.


If a claimant knew that a solicitor was authorised to accept service, then it was right that the methods of service set out in rule 6.5 should not be available. However, if a claimant was told that a solicitor did not have authorisation to accept service, then it made no sense to insist that personal service be used. It must have been intended that the other methods of service in rule 6.5(6) could be used in those circumstances. In C's case, the appeal against the decision refusing to strike out the claim form was therefore dismissed.


The direct route for the reconsideration of an application made without notice on paper under rule 3.3(5) was unarguable since rule 3.3(5) only applied where the court had made an order of its own initiative. Where a court was considering an application without notice, requesting that it be dealt with on paper, it was obvious that the court was acting on an application and not of its own initiative. Taking the indirect route under rule 3.3(5), the court could decide to deal with an application without a hearing under rule 23.8.


The need to conduct litigation efficiently and proportionality meant that applications should be disposed of without a hearing. There was nothing objectionable in giving any party affected by an order made without a hearing the right to apply to have it set aside, varied or stayed. However, if a judge had dismissed an application under rule 3.3(5), whether on paper or at a hearing, any further application would be struck out as an abuse of process, unless it was based on substantially different material from the earlier application. Therefore, the possibility that further such applications might be made was not a good reason for adopting a strained interpretation of rule 23.8.


The requirements of rule 7.6(3) were relevant to the discretion given by rule 7.6(2); however, the fact that the pre-conditions set out in rule 7.6(3)(b) and (c) were not satisfied was not necessarily determinative of the outcome of an application under rule 7.6(2). When deciding whether to grant an extension of time, the court was required to consider how good a reason there was for the failure to serve in time - the stronger the reason, the more likely the court would be to grant an extension, Hashtroodi applied. That involved making a judgment about the reason why service had not been affected within the relevant four-month period. That was a more subtle exercise than that required under rule 7.6(3), which provided that unless all reasonable steps had been taken, the court could not extend time.


In M's case, it would not be right to extend the time for service of the form since there had been no reasonable basis for concluding that it had been sent to the defendant's last known residence. Accordingly, M's appeal was dismissed. In L's case, where there was no reason, or only a weak reason, for not serving the form in time, the court was unlikely to grant an extension of time. Accordingly, L's appeal was dismissed. In G's case, the extension of time for the service of the form was set aside as there was no basis on which a litigation solicitor should have justified delaying the service of the form beyond the date by which it should have been served in that case. Accordingly, G's appeal was allowed.


Judgment accordingly.






DEFAMATION


Fair comment - freedom of expression - libel qualified privilege

George Galloway v Telegraph Group Ltd CA (Civ Div) (Sir Anthony Clarke Master of the Rolls, Lords Justice Chadwick, Laws) 25 January 2006


The appellant newspaper (T) appealed against the decision ([2004] EWHC 2786 QB, [2005] EMLR 7) and award of damages in favour of the respondent Member of Parliament (G) on his libel claim.


T had published articles slightly more than a month after the invasion of Iraq by coalition forces. The articles were based on documents found by T's reporter in badly damaged government offices in Baghdad. The judge held that the articles complained of were seriously defamatory of G and were not protected by privilege or by the defence of fair comment, and awarded damages of £150,000.


T submitted that it had been entitled to report the finding of the documents and their content, and to fill in what it adjudged to be background information about G and his history, and to express by way of comment its own views of their weight and significance and of what they established; the statements of fact were protected by the privilege identified in Reynolds v Times Newspapers Ltd [2001] 2 AC 127; it had been entitled to publish the matter complained of under article 10 of the European Convention on Human Rights.


Richard Rampton QC, Heather Rogers (instructed by Davenport Lyons) for the claimant; James Price QC, Matthew Nicklin (instructed by Dechert) for the defendant.


Held, T was only entitled to make allegations of fact if it could justify them or it was entitled to claim the Reynolds privilege in respect of them. The judge had been entitled to find that the allegations complained of were allegations of fact and not merely comment, and were not mere reportage, and that T had adopted and embellished the allegations in the documents.


Whether a particular statement of fact was protected by qualified privilege of the kind referred to in Reynolds depended on all the circumstances of the case. It was a question of balancing the various considerations identified in Reynolds. The judge had been entitled to take the view that T had gone a long way to adopt and embellish the allegations in the Baghdad documents and had done so with relish. If he had accepted the submission that adoption of some of the allegations in a document that was being reported was not fatal to a case of Reynolds privilege, he would nevertheless have held that the balance fell on the side of G and not on the side of T.


Such a conclusion would have been entirely justified on the facts found by the judge, Al-Fagih v HH Saudi Research and Marketing (UK) Ltd [2001] EWCA Civ 1634, [2002] EMLR 13 considered. There was no proper basis on which the appeal court could interfere with the judge's decision.


That conclusion was not affected by consideration of the case law of the European Court of Human Rights, which stressed the importance of the national court striking a fair balance between the protection of freedom of expression enshrined in article 10 and the protection of a person's reputation enshrined in article 8 as an aspect of private life. That was exactly the balance that was articulated in Reynolds. How the balance was struck was a matter for the judge and the court would not interfere with his decision in the instant case.


Once it was held that the defence of Reynolds privilege failed, the defence of fair comment could not succeed. The judge did not err in principle in assessing the award of damages.


Appeal dismissed.






MENTAL HEALTH


Capacity - consent to treatment - drugs - human rights

R (on the application of B) v (1) SS (responsible medical officer) (2) second opinion appointed doctor (3) Secretary of State for Department of Health: CA (Civ Div) (Lord Chief Juctice Lord Phillips, Lords Justice Thorpe, Rix): 26 January 2006


The appellant patient (B), who was detained under the Mental Health Act 1983, appealed against the refusal ([2005] EWHC 1936, [2005] HRLR 40) of his application for judicial review of a decision to subject him to medical treatment to which he did not consent.


B suffered from bipolar affective disorder. The first respondent (S), B's responsible medical officer, was of the opinion that his condition was worsening and he sought to treat him with anti-psychotic medication, administered by injection, and a mood stabiliser. B, who did not believe that he was mentally ill, refused to consent.


The judge below had held that B lacked capacity, that the proposed compulsory administration of medication was unlikely to reach a level of severity sufficient to engage article 3 of the European Convention on Human Rights, and that the treatment was a medical or therapeutic necessity.


The judge also found that the proposed treatment satisfied the test in section 58 of the Mental Health Act 1983, was justified under article 8(2) of the convention and was in B's best interests.


The issues for determination were whether the judge had been correct to find that B lacked capacity; whether compulsory treatment of a patient who had capacity violated article 3, article 8 and article 14, unless it satisfied the threshold requirement of being necessary for the protection of the public or to prevent the patient suffering serious harm; whether the judge had been wrong to find that the proposed treatment constituted a medical or therapeutic necessity; the procedure that the court should follow when judicial review was sought on convention grounds of a decision to administer treatment under section 58.


Paul Bowen, Alison Gerry (instructed by Scott-Montcrieff Harbour & Sinclair) for the appellant; Owain Thomas (instructed by Capsticks) for the first respondent; Jeremy Hyam (instructed by the Treasury Solicitor) for the second respondent; Clive Lewis, Ben Hooper (instructed by solicitor for the Department of Health) for the third respondent.


Held, a patient lacked capacity to consent to treatment if he was not able to appreciate the likely effects of having or not having the treatment. B refused to accept the possibility that he had a mental illness. Two psychiatrists had concluded that B did have capacity, and two had concluded that he did not. The judge had agreed with the conclusion that B did not have capacity; his reasoning was compelling and his conclusion could not be challenged, R (on the application of Wilkinson) v Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545, [2002] 1 WLR 419 and Re MB (Caesarean Section) (1998) 38 BMLR 175 considered.


The judge below had been correct to conclude that capacity was not the critical factor in determining whether treatment could be administered without consent. The 1983 Act provided for an integral package of detention and treatment and it contained restrictions that were designed to ensure that individual treatment was justified. The objective of detention in a mental hospital was the rehabilitation of the patient. That militated against an approach that ignored the overall scheme of the 1983 Act and imposed a threshold that treatment without consent could only be justified if that treatment was necessary to stop the patient causing harm to others or to protect the patient from serious harm, R (on the application of B) v Ashworth Hospital Authority [2005] UKHL 20, [2005] 2 AC 278 and R (on the application of PS) v Responsible Medical Officer (Dr G) [2003] EWHC 2335 (Admin) applied.


The judge below had been entitled to find that the proposed treatment was in B's best interests and was a medical necessity. The imposition of the treatment would be in accordance with English law and would not infringe B's convention rights, Herczegfalvy v Austria (A/242-B) (1993) 15 EHRR 437 considered.


It was undesirable for medical practitioners to attend court as witnesses to give evidence where treatment under section 58 was in issue in judicial review proceedings. Where the issue at hand was whether the patient should be detained in a mental hospital at all, that issue should be dealt with by a mental health review tribunal. Where the issue concerned the treatment itself, careful consideration should be given to the appropriate procedure to minimise the need for protracted and expensive legal proceedings requiring oral evidence from medical witnesses where there was no prima facie case that anything untoward had happened.


Appeal dismissed.






PERSONAL INJURY



Asbestos - causes of action - employers' liabilities - pleural membrane - psychiatric harm - public policies

Rothwell v Chemical & Insulating Co Ltd & anor; Topping v Benchtown Ltd (formerly Jones Bros Preston Ltd); Johnston v NEIL International Combustion Ltd; Mears v RG Carter Ltd; Grieves v FT Everard & Sons Ltd & anor; Hindson v Pipe House Wharf (Swansea) Ltd: CA (Civ Div) (Lord Chief Justice Lord Phillips, Lord Justice Longmore, Lady Justice Smith): 26 January 2006


The appellant employers (D) appealed against the decision ([2005] EWHC 88 (QB)) that they were liable to the claimants (C) in respect of the appearance of pleural plaques, and both sides appealed on quantum. Ten claims for personal injury had been tried together as test cases. The appeals in respect of liability raised the issue that had led to the trial of the actions as test cases.


D had negligently exposed C to asbestos dust. C had developed pleural plaques. The presence of such plaques did not usually occasion any symptoms. They were evidence of exposure to asbestos but did not threaten or lead to other asbestos induced conditions. In one case, the claimant (G) had developed a depressive illness as a result of worrying about the consequences of his exposure to asbestos. In the case of another (H), the defendant employer had chosen not to contest liability.


The judge held that the presence of pleural plaques was sufficient to found a cause of action and an award of damages because it indicated the permanent penetration of the chest by asbestos fibres, bringing with it anxiety and the risk of the future onset of symptomatic diseases.


Michael Kent QC, Michael Rawlinson, Sophie Allan (instructed by Halliwells) for the first to fifth appellants; Frank Burton QC, Nigel Lewers (instructed by Field Fisher Waterhouse) for the sixth appellant; Frank Burton QC, Harry Steinberg, Allan Gore QC, David Allan QC (instructed by Marrons for the first respondent, Whittles for the second respondent, Thompsons for the third respondent, and John Pickering & Partners for the fourth and fifth respondents) for the first, second, third, fourth and fifth respondents; Charles Feeny (instructed by Cartwright Black) for the sixth respondent.


Held, Lord Justice Smith dissenting on the issue of liability, the development of pleural plaques was insufficiently significant of itself to constitute damage on which a claim in negligence could be founded, Cartledge v Jopling [1963] AC 758 applied. No claim could be made in respect of the chance of contracting a future disease if that was not consequent on some physical injury. Nor was fear of future illness a free-standing head of damage, Lynch v Knight (1861) 9 HLC 577 applied.


Pleural plaques caused by negligent exposure to asbestos, which were of themselves insufficiently serious to give rise to a cause of action, did not found a claim in negligence when aggregated with the risk of subsequent significant injury and consequent anxiety. Damage, of itself insignificant, which was caused by negligence, would not found a cause of action if there were a risk that it might lead to more substantial damage at a later stage. The law did not recognise a duty to take care not to cause anxiety. Aggregating the plaques, the risk of future disease and anxiety did not give rise to a cause of action. The judge had been wrong to hold that the presence of asbestos fibres in the body, evidenced by the plaques, was any more capable than the plaques themselves of founding a cause of action. D's appeals on liability were allowed, Church v Ministry of Defence (unreported, 23 February 1984), Sykes v Ministry of Defence (unreported, 19 March 1984) and Patterson v Ministry of Defence (unreported, 29 July 1986) doubted.


G, who had suffered a depressive illness, could not recover for psychiatric injury. A defendant who negligently exposed a claimant to the risk of contracting a disease was not liable for free-standing psychiatric injury caused by the fear of contracting the disease, Page v Smith [1995] P&CR 329 considered. G's psychiatric injury was not a reasonably foreseeable consequence of the defendant's breach of duty. A claimant could not recover damages for psychiatric injury caused by anxiety at the risk of sustaining a disease where a person of reasonable fortitude would not have reacted in that way.


The judge erred in principle in assessing H's damages and H's appeal was allowed.


Judgment accordingly.






PROPERTY


Modification - reasonable user - restrictive covenants - building scheme

Shephard & Ors v Turner & anor: CA (Civ Div) (Lords Justice Mummery, Latham, Carnwath) 23 January 2006


The appellants (S) appealed against a decision of the Lands Tribunal to permit modification of restrictive covenants affecting eight houses in a cul-de-sac. The owners of one of the properties (T) wished to erect a dwelling house on part of the back garden of their house. T's plot was at the head of the cul-de-sac and that plot and the neighbouring plot were significantly larger than the sites belonging to S, who were the other residents who objected to the proposal. The development required the demolition of T's garage for access purposes and the construction of a new garage.


The county court ruled that the construction of a second house and the new garage would breach the restrictions imposed in the 1952 conveyance of T's land, and that S were entitled to enforce the covenants by virtue of a scheme of development imposed by the conveyances. T applied to modify the covenants under section 84(aa) of the Law of Property Act 1925 to permit construction of the new house and garage.


The tribunal held that the proposed modifications, while having some minor disadvan-tages, would not injure S or affect the value of their properties, even taking account of the 'thin end of the wedge' factor in permitting the development, and that modest compensation would adequately cover temporary disturbance caused by the building works.


S submitted that the tribunal had applied the wrong legal test when considering the argument that modification of the covenants would be 'the thin end of the wedge'; having regard to its findings as to the adverse effects of the proposals, no reasonable tribunal could have concluded that the overall benefits secured by the covenants were not of substantial value within section 84(1A)(a) of the 1925 Act; the tribunal erred in disregarding the admittedly adverse effect of the access-way to the new garage; the tribunal reached an unreasonable conclusion about the extent of disturbance arising from the construction works.


Guy Fetherstonhaugh QC, Emily Windsor (instructed by Battens) for the appellants; George Newsom (instructed by Stones) for the respondents.


Held, the extent to which a proposed development, itself relatively innocuous, might open the way to further developments, which taken together would undermine the efficacy of the protection afforded by the covenants, was a material factor. But it was hard to see how the tribunal had applied the wrong test. The tribunal took the issue into account as relevant but it was an issue of fact not of law. The tribunal's conclusion on that argument was not irrational.


The tribunal dealt in turn with the claimed benefits of the covenants and concluded that the benefit of the ability to prevent limited adverse effects was not substantial. That conclusion did not raise any issue of law and was reasonably open to the tribunal.


The adverse effect that the tribunal identified was not the new access way, which was not a significant intrusion, but the removal of the existing garage to form the access to the new dwelling that would represent a break in the relevant facade. The facade might be an attractive feature but its protection was not part of the contractual scheme of which the restrictions formed part. The tribunal did not err in treating that as one of the factors to be taken into account but to be given less weight in the overall judgment of substantiality, Stannard v Issa [1987] AC 175 applied.


The distinct form of covenant in the instant case provided protection against acts causing nuisance or annoyance. Such a covenant was intended to provide protection against temporary as well as long-term annoyance and was not necessarily to be confined by analogy with the common law of nuisance. There was no authority to the effect that ordinary construction works carried out with reasonable care involved a breach of such a covenant that was not to be equated with a covenant providing specific protection from construction disturbance.


The concept of 'reasonable user' in section 84(aa) referred to the long-term use of land rather than the process of transition to such a use, and the primary consideration was the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short-term disturbance which was inherent in any ordinary construction project, Re Kershaw (1976) 31 P & CR 187 and Re Tarhale Ltd (1990) 60 P&CR 368 considered. The tribunal had been entitled to conclude that the disturbance from building works would not be substantial.


Appeal dismissed.