PERSONAL INJURY

Age - children - occupiers' liability - trespassers

Keown v Coventry Healthcare NHS Trust: CA (Civ Div) (Lords Justice Mummery, Longmore, Mr Justice Lewison): 2 February 2006



The appellant healthcare trust appealed against the county court's decision that it was liable for the personal injuries suffered by a trespasser (K). K had been climbing the underside of a fire escape at the trust's hospital premises when he fell and was injured. He was 11 years old at the time of the accident.


The fire escape went to the top (third) floor of the building. It was in part of the hospital grounds that were used by the public as a means of going between the streets on either side.


The judge held that there existed a danger due to the state of the premises within section 1(1)(a) of the Occupiers' Liability Act 1984. He held that K was two-thirds responsible for what had happened. The trust submitted that the fire escape was not itself dangerous and that any danger was due to K's activity on the premises and not the state of the premises. K submitted that there was danger due to the state of the premises 'as found by' K, since the fire escape was amenable to being climbed from the outside with a consequent risk of harm from falling from a height and constituted an inducement to children habitually playing in the grounds of the hospital.


Martin Porter, Nina Goolamali (instructed by Shakespeares) for the claimant; Paul Bleasdale, William Pusey (instructed by Brindley Twist Tafft & James) for the defendant.


Held, the authorities would conclude the question in favour of the trust if K had been an adult, Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, [2003] 2 WLR 1138 and Tomlinson v Congleton BC [2003] UKHL 47, [2004] 1 AC 46 considered. Premises that were not dangerous from the point of view of an adult could be dangerous for a child and whether they were was a question of fact and degree.


However, it would not be right to ignore a child's choice to indulge in a dangerous activity in every case merely because he was a child. The judge had found that K had not only appreciated that there was a risk of falling but also that what he was doing was dangerous and that he should not have been climbing the exterior of the fire escape. In the circumstances, it could not be said that K did not recognise the danger, and the risk arose not out of the state of the premises, which were as one would expect them to be, but out of what K chose to do, Young v Kent CC [2005] EWHC 1342 (QB) considered.


Therefore, K had not suffered injury by reason of any danger due to the state of the premises and did not pass the threshold requirement in section 1(1)(a).


If there could be said to have been a risk by reason of a danger due to the state of the premises and the risk could be said to have arisen because the fire escape was unguarded or unfenced, K could have brought himself within section 1(3)(a) of the 1984 Act, because the trust knew that the fire escape was unguarded and unfenced. K could also bring himself within section 1(3)(b), since the trust knew that children played in the vicinity of the unguarded or unfenced fire escape. It was doubtful whether K could have brought himself within section 1(3)(c) because it would not be reasonable to expect the trust to offer protection from such a risk.


Appeal allowed.






CIVIL PROCEDURE


Availability of part 36 offer for acceptance after appeal hearing

David Philip Hawley v (1) Luminar Leisure plc; (2) ASE Security Services Ltd; (3) David Preston Mann (as nominated for Farady Underwriting Ltd): CA (Civ Div) (Lords Justice Brooke (Vice-President), Maurice Kay): 1 February 2006


The applicant (L) applied for an appeal that had been heard by the Court of Appeal to be stayed pursuant to rule 36.15(6) of the Civil Procedure Rules on the basis that a part 36 offer made by the respondent (F) had been accepted.


The claimant (C) had sued L, which owned a nightclub where he had been assaulted by a doorman. The company (S) that had supplied the doorman and F, as S's insurers, were also defendants to the action.


C had obtained a default judgment against S. The judge had held that L was liable as the temporary employer of the doorman and was not entitled to contribution from S. He further held that C's injury was within the insurance cover provided by F. L appealed and F cross-appealed. Before the hearing of the appeal and cross-appeal, F made a part 36 offer to settle on the basis that the parties agreed to a 50/50 division of liability, each bore their own costs and F took over the conduct of the defence. At the hearing, L made its own part 36 offer on the same terms except that liability should be divided 40/60 between L and F. F rejected that offer and F's solicitors indicated by faxed letter that it followed that the 50/50 offer was no longer available. After the appeal had been heard, L purported to accept the 50/50 offer. F submitted that the 50/50 offer was no longer open for acceptance. L submitted that part 36 did not provide for an offer to lapse, that the offer had never been rejected and was still open for acceptance when it had purported to accept it.


Derek Sweeting QC (instructed by Davies Lavery) for the applicant; Patrick Lawrence QC, Alex Glassbrook (instructed by Reynolds Porter Chamberlain) for the respondent.


Held, on the ordinary rules of offer and acceptance, there had been an explicit withdrawal of the 50/50 offer by the solicitor's letter so that it was no longer available for acceptance. If L had been in any doubt as to the meaning of the letter, it should have asked for clarification.


Alternatively, if L had wished to accept the offer before the end of the hearing, it should have asked for a stay while it sought permission to accept the offer from a different judge of the court.


Even if F's offer had been available for acceptance after the appeal had started, which was doubtful, there was certainly an implied term that it would not be available for acceptance after the hearing had ended and the court had reserved judgment. By that stage, the risks of the litigation might have altered very considerably, and it would be inimical to the part 36 regime if there were scope for an offer to be capable of valid acceptance (subject to a ruling as to costs) after the appeal hearing was over and the court had embarked on considering its judgment.


Application refused.


For related proceedings, see Hawley v Luminar Leisure Plc [2006] EWCA Civ 18.






CRIMINAL


Confiscation orders - fraud - proceeds of crime - proportionality

R v Ajay Kumar Sharma: CA (Crim Div) (Lord Justice Pill, Mr Justice Newman, Mr Justice Lloyd Jones): 27 January 2006


The appellant (S) appealed against a confiscation order made against him under section 71 of the Criminal Justice Act 1988. S and his co-defendants had been convicted of perpetrating a fraud on a company (P) by invoicing P for non-existent goods and services. The vehicle used for the fraud was a company (X). P had paid the money into a bank account opened by S in X's name. S was the sole signatory on the account and all the relevant transactions were executed by S, acting on the instructions of one of his co-defendants.


The judge stated when sentencing that it was not easy to assess where the cash that had been withdrawn from X's account had gone, but found that much of it seemed to have gone to S's co-defendants and some of it to S. However, the judge found that S had 'obtained' the full amount deposited into the bank account and thus, subject to S's realisable assets, according to the terms of section 71 of the 1988 Act, he was duty bound to make a confiscation order in the full amount of the benefit.


S submitted that when calculating the benefit figure, the judge had failed to make a reduction for the value of goods and services that had been delivered to P; the judge had unfairly prevented S's mother, when giving evidence at the confiscation hearing, from having full access to an interpreter and that rendered the hearing unfair; the judge should have reduced S's benefit to take account of the benefit derived by his co-defendants, and the judge had failed to read down section 71 as providing the court with a discretion to reduce the benefit figure in circumstances in which the computation of the benefit figure would involve a disproportionate interference with S's human rights under article 8 and article 1 of protocol 1 of the European Convention on Human Rights.


Paul Sharkey (instructed by Iliffes Booth & Bennett) for the appellant; James Norman (instructed by the Crown Prosecution Service (Middlesex)) for the Crown.


Held, the judge had carefully considered all the evidence on which had S relied and had ruled on the factual issue presented to him. He concluded that, although he could not be sure to the criminal standard that no parts or services had been supplied to P, on the civil standard he was satisfied that nothing had been supplied. S had advanced no ground for impugning the judge's conclusion of fact on this issue and the argument had, to a large degree, amounted to an attempt to persuade the instant court to come to a different conclusion of fact from that of the judge.


The suggestion that the judge had erred because he had failed to take into account the evidence of two prosecution witnesses was plainly wrong. It was clear from the judge's ruling that he had taken account of the evidence of both the witnesses and was aware that there was no evidence that the goods had been supplied by other companies. It was open to the judge to conclude on the evidence that no goods or services had been supplied.


His conclusion had not been impugned.


A decision whether an interpreter should be used was a matter for the court and fell within the wide range of a judge's discretionary powers when conducting a trial. The judge was not bound to make inquiries as to the quality of S's mother's English but was entitled, having been told that she had some command of English, to take the opportunity of assessing for himself the limits of her comprehension and fluency. It was clear that the judge had in mind all the factors bearing upon her ability to understand and give evidence, and properly took account of the quality of her oral evidence.


Given that the 1988 Act was concerned with forcing a defendant to surrender the benefit he had obtained from his criminal activity, so long as the benefit he obtained was correctly calculated it could not be disproportionate for him to be made accountable for it. The amount of the benefit he obtained was not affected by the amount that might also have been obtained by others to whom he had transferred any part of the benefit. The amount of money that might be recovered pursuant to a confiscation order was irrelevant. The law was settled on this issue, R v Cadman Smith (David) [2002] 1 WLR 54 and R v Patel (Assesh) [2000] Crim LR 201 applied.


Appeal dismissed.






ENTERTAINMENT


Advertisements - agreements - breach - compromise - music industry - third parties

(1) Alan Williams Entertainment Ltd (2) Alan Williams v (1) William Hurd (2) Alex Bines (3) Paul Prewer (aka Paul Da Vinci): Ch D (Mr Justice David Richards): 2 February 2006


The claimant (W) claimed damages from the defendants (D) for breach of a compromise agreement. D counterclaimed for damages in respect of the same agreement. Some of the parties had recorded a song together in the 1970s, which had become a chart hit. The song had been released under the name of a band (R), of which all except one defendant (P) had been members. P had been the lead vocalist on the record. The band released other records, but traded largely on the success of the hit single. From the mid-1980s, R made recordings with W as the lead singer, splitting up in 1999.


W brought proceedings on the basis that he alone was entitled to use R's name in the course of his trade. Those proceedings had been compromised on the basis that there would be two bands named 'R featuring W' and 'R featuring H'. The agreement also provided that neither band would 'trade as R' from an agreed date. Following the compromise, the parties ran the separate bands provided for by the agreement.


In the instant proceedings, W alleged that D had breached the agreement by effectively trading as R through a series of statements on Web sites, in advertisements and in other promotional material. D cross-claimed that W had breached the agreement through statements on Web sites, in promotional material and also in the use of R's logo. The issues for consideration were the meaning of 'trade as' in the agreement; and the extent to which the parties had to control the activities of third parties in connection with the prohibition on trading as R.


Denise McFarland (instructed by Barrett & Thomson) for the claimant; Rebecca Page (instructed by The Simkins Partnership) for the defendants.


Held, the ordinary meaning of 'trade as' in the context of the compromise agreement was not limited to the use of R as the name of the band, but extended to any promotion of the band as the original group. That could be done by the impression, objectively ascertained, given by an advertisement, Web site entry or other material. The purpose of the agreement, in enabling each side to use R in their name, was to allow some trading off R's reputation. However, the new bands were not permitted to trade in such a way as to present or promote themselves as R, thereby suggesting that they were the original group.


An express provision in a contract not to promote or describe the band simply as 'R' would strengthen the bands' ability to ensure that they were correctly promoted, but such a clause was not a necessary aspect of the obligation to use reasonable endeavours to prevent promotion of either band as 'R'. A construction of the compromise agreement that allowed promoters and others to describe either band as the original group would largely defeat its intended purpose. The obligation to use reasonable endeavours encompassed the taking of reasonable steps in advance of any promotion to prevent the description of the bands as the original group and, where the bands had been wrongfully described, reasonable steps to correct any errors. In the instant case, promotional material had blurred the distinction between the original group and the later bands, to the extent that both the claim and the cross-claim partially succeeded. Judgment accordingly.






INTELLECTUAL PROPERTY


Artistic works - copyright - dramatic works - literary works - video games

Nova Productions Ltd v Mazooma Games Ltd & Ors; Nova Productions Ltd v Bell Fruit Games Ch D (Mr Justice Kitchin): 20 January 2006


The claimant company (N) brought two actions for infringement of copyright, the first action against M and the second action against B. N was a UK company that designed, manufactured and sold arcade video games, as was B. M was a games designer and provided software to other companies.


The games in question were all coin-operated video games involving the simulation of a game of pool. One of N's main shareholders and directors (J) had designed a game called 'Pocket Money' in which the player exercised their hand-eye co-ordination in playing pool and could win a cash prize; it could be played as a tournament by players at different terminals competing against each other. M had created a game called 'Jackpot Pool' which was a standard action game with prizes. B created a game called 'Trick Shot', which was a game that did not involve skill but did have the opportunity to win prizes.


Representatives of M and B had both played on 'Pocket Money' at a trade exhibition before creating their games. N believed that M and B had copied the design of 'Pocket Money' when designing their respective games. N submitted that M and B had infringed the copyright in 'Pocket Money' in relation to: artistic works, being the bitmap graphics and the frames generated and displayed to the user; literary works, being J's design notes and the program he wrote to implement the game; a dramatic work embodied in the game itself.


Martin Howe QC, Robert Onslow (instructed by Kuit Steinart Levy) for the claimant; Henry Carr QC, Michael Hicks (instructed by Wragge & Co) for the defendants.


Held, the bitmap files created by J using various computer tools created a visual effect that was similar to that of a painting or drawing and they were therefore examples of 'graphic works' under section 4(1) of the Copyright, Designs and Patents Act 1988. The composite frames generated by the computer using the bitmap files were artistic works under sections 9(3) and 178 of the Act.


It was accepted by M and B that the computer program embodied in 'Pocket Money' was a literary work under section 3(1) of the Act, as were J's design notes, being preparatory design material for a computer program.


It was impossible to say that the 'Pocket Money' game was a dramatic work as it was not a work of action intended to be or capable of being performed before an audience. The sequence of images varied greatly from game to game and there was simply no sufficient unity within the game for it to be capable of performance, Green v Broadcasting Corporation of New Zealand [1989] 2 All ER 1056 and Norowzian v Arks Ltd & Ors (No 2) [2000] IPD March 23026 applied. The program code did not contain a record of any dramatic work, but only a set of instructions that dictated a response to the user's inputs.


The court found that certain features of 'Trick Shot' and 'Jackpot Pool' were to some extent derived from or inspired by 'Pocket Money'. Having arrived at that conclusion, it was necessary to consider whether that meant that a substantial part of any copyright work had been reproduced. The issue had to be considered separately for each class of copyright work relied upon. On the facts, there was not reproduction of a substantial part of the copyright in any of the classes of copyright work relied on, Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416 followed.


Judgment for defendants.






HEALTH


Abortion - children - confidentiality - contraception - Gillick competence

R (on the application of Sue Axon) (Claimant) v Secretary of State for Health (Defendant) & Family Planning Association (Intervener): QBD (Admin) (Mr Justice Silber): 23 January 2006


The claimant parent (X) applied for judicial review of a 2004 Department of Health document that gave guidance to health professionals on giving advice and treatment to people under the age of 16 on sexual matters.


X's application was concerned with the situation where a person under the age of 16 wished to obtain advice or treatment on sexual matters such as contraception, sexually transmitted diseases and abortion, was able to understand the advice and its implications but could not be persuaded to notify his or her parents or let the medical professional notify them. The 2004 guidance stated that the duty of confidentiality owed to a young person was the same as that owed to any other person, but that it was not absolute and could be overridden in exceptional circumstances where there was a risk to the person's health, safety or welfare. It provided that a health professional could give advice and treatment on sexual matters, without parental knowledge or consent, provided that the young person understood the advice and its implications, and his or her physical or mental health would otherwise be likely to suffer and so provision of the advice or treatment was in his or her best interests. The guidance also recommended that doctors follow the criteria set out by Lord Fraser in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.


X contended that a health professional was under no obligation to keep confidential advice and treatment that he proposed to provide in respect of contraception, sexually transmitted diseases and abortion, and must therefore not provide such advice and treatment without the knowledge of the parents unless to do so would or might prejudice the child's physical or mental health so that it was in the child's best interests not to do so; alternatively, at the very least, the duty described above was the duty in respect of the provision of proposed advice and treatment in respect of abortion; a health professional was not entitled to provide actual advice and treatment on sexual matters without the parents' knowledge unless to do so would or might prejudice the child's physical or mental health so that it was in the child's best interests not to do so; the 2004 guidance was unlawful; the 2004 guidance failed to discharge the state's positive obligation to give practical and effective protection to her rights under article 8 of the European Convention on Human Rights.


Philip Havers QC, Peter Duckworth (instructed by Omerods (Croydon)) for the claimant; Philip Sales, Jason Coppel (instructed by the Solicitor, Department for Health) for the defendant; Nathalie Lieven, David Blundell (instructed by Leigh Day & Co) for the intervener.


Held, there could not be any exception to the duty of confidence owed to a young person along the lines suggested by X. The majority in Gillick had impliedly rejected the submission that a health professional was obliged to inform a young person's parents about proposed advice on contraception. The majority in Gillick had concluded that the refusal of a competent young person to notify his parents of contraceptive treatment did not mean that the treatment could not be given, as it was permissible for the doctor to give it provided that certain conditions were satisfied.


Although it was important to recognise that, on the whole, a parent was the best person for guiding and advising a young person under the age of 16, that parents had a duty to protect their children, and that secrecy was destructive of family life, those factors did not override the duty of confidentiality owed to the child, Gillick followed and Z v Finland (1998) 25 EHRR 371 considered. If the general rule was that health professionals could pass on information to parents, it was likely that the effect would be to deter many young people from seeking advice on sexual matters. The likely consequences of that were very disturbing.


Even though Gillick was concerned only with contraception, there was no reason why the approach in Gillick should not apply to other proposed treatment and advice. Lord Fraser's guidelines and Lord Scarman's criteria in that case should be adapted and applied to advice and treatment for abortion, even though abortion raised more serious and more complex issues than contraception.


The approach of a health professional to a young person seeking advice and treatment on sexual issues without notifying his or her parents should be in accordance with Lord Fraser's guidelines as adapted for abortions and sexually transmitted diseases.


The 2004 guidance was not unlawful, as it made it clear that the initial and significant duty of the health professional was to seek to persuade the young person to inform his or her parents and it made it clear that the guidelines in Gillick were to be followed.


There was no infringement of the article 8(1) rights of a young person's parents if a health professional was permitted to withhold information relating to the advice or treatment of the young person on sexual matters, MS v Sweden (1999) 28 EHRR 313 and Kjeldsen v Denmark (A/23) (1979-80) 1 EHRR 711 considered.


Obiter: If the 2004 guidance did interfere with parents' rights under article 8(1), any interference could be justified under article 8(2).


Application refused.






PLANNING


Decisions - delegation - demolition - planning - permission

R (on the application of Springhall) v Richmond upon Thames London Borough Council: CA (Civ Div) (Lords Justice Auld, Moore-Bick, Sir Peter Gibson): 24 January 2006


The appellant (S) appealed against a decision dismissing his claim for judicial review of a decision made by an officer of the respondent local authority, granting planning permission for S's neighbour to demolish a single-storey building on his land and replace it with a new building. S had objected to the proposal, highlighting the fact that the existing building was a building of 'townscape merit' and that there was a presumption against demolition in the supplementary planning guidance of the local authority. S did not express a wish to address the local authority's planning committee.


The planning officer approved the grant of permission purportedly under an exception in the local authority's scheme of delegation for applications according with any supplementary planning guidance. The result of this was that the application would not be reserved to the planning committee. In his report, the officer referred to the 'townscape status' of the building and to S's objections, but determined that the proposed development complied with the supplementary planning guidance.


The judge concluded that the officer had been reasonably entitled to reach that conclusion. He also held that the court's judgment in R (on the application of Carlton-Conway) v Harrow LBC [2002] EWCA Civ 927, [2002] 3 PLR 77 did not constitute a general principle that where there was a real issue as to the meaning or application of a policy, it was simply unlawful for the planning officer to exercise delegated powers of decision-making and the matter should be referred to a planning committee.


The issues for determination were the width of the ratio in Carlton-Conway as to the exercise by officers of delegated powers, and whether the officer had acted outside the local authority's scheme of delegation in determining an application that arguably significantly departed from the policy on buildings of 'townscape merit'.


Meyric Lewis (instructed by Rees Freres) for the appellant; Daniel Kolinsky (instructed by George Chesman) for the respondent.


Held, unless the decision-maker attached a meaning to the words of a planning policy that they could not reasonably bear, it was not for the court to substitute its own interpretation of the policy and the application of such policy to the facts of any particular case was a matter of planning judgment for the decision-maker subject only to considerations of Wednesbury irrationality.


It was for local planning authorities to determine the policy or basis of their schemes of delegation, not for courts to gloss them by imposing fetters according to the courts' perception of how the decision-making should be allocated between the committee and the officer. The decision in Carlton-Conway should not be read as laying down any general principle that where there was any real issue about the meaning or application of a planning policy, it was unlawful for an officer to exercise delegated powers of decision-making.


While there was an important interest of public participation in planning decisions, there was a strong public interest in the efficient and timely administration of planning control. Providing an officer could make sense of the policies and identify the relevant facts so as to enable him to apply the former to the latter, there was no basis, short of illegality or Wednesbury irrationality, why the courts would intrude further on the arrangements local authorities made for their decision-making.


In the instant case, there was no dispute as to what the material planning guidance said. The relevant policies contemplated the possibility of circumstances in which the presumption against demolition could be rebutted by the circumstances and there was no basis on which the court could properly interfere with the officer's decision on that account.


The nature of the officer's exercise of his delegated power was one of planning judgment impugnable only on Wednesbury grounds. It was clear from the officer's report that he had addressed the presumption against demolition but found on the particular circumstances that demolition was appropriate and accorded with the local authority's policies. In the circumstances of the case, the decision was one that was open to the officer and was not challengeable either on Wednesbury grounds as to jurisdiction or as a relevant planning decision.


Appeal dismissed.