CIVIL

Civil recovery proceedings - no punishment without law - recovery of property

Director of the Assets Recovery Agency v Ashton QBD: (Admin) (Mr Justice Newman): 31 March 2006



The court was required to determine a preliminary issue in proceedings for civil recovery brought by the claimant agency under sections 243 and 266 of the Proceeds of Crime Act 2002 against the defendant (D).


D had a number of convictions for drug trafficking and other offences. The agency identified eight properties that D owned and it sought civil recovery and summary judgment against those properties. Those proceedings were adjourned pending the determination of the preliminary issue as to whether a civil recovery order breached article 7 of the European Convention on Human Rights. D contended that a civil recovery order breached article 7 because it could be regarded as being a penalty.


Mark Sutherland-Williams (instructed by the Treasury Solicitor) for the claimant; Mark Turner QC, Robin Kitching (instructed by Bakers) for the defendant.


Held, the authorities were clear that the imposition of a civil recovery order did not breach article 7 and was not a penalty, R (on the application of the Director of the Assets Recovery Agency) v He [2004] EWHC 3021 (Admin) applied, Director of the Assets Recovery Agency v Walsh [2005] NICA 6 and Scottish Ministers v McGuffie (OH) (unreported, 28 February 2006) followed.


Further, it could not be said that a civil recovery order lacked a compensatory element. Crime was not simply an offence against an individual victim, but was crime against the good character of the state and put the state to great expense in investigating the crime. Civil recovery orders were a manifestation of Parliament's intention to enforce some measure of recovery for the state and the public interest. There was no force in the suggestion that, because a civil recovery order involved the deprivation of property, it amounted to a penalty. The fact of the matter was that a person in possession of property to which a civil recovery order applied had, according to Parliament, no right to hold that property.


Summary judgment was granted and a civil recovery order made in respect of seven of the eight properties, with a stay on enforcement pending any application by D to the Court of Appeal for permission to appeal. A hearing of proceedings relating to the eighth property fell to be determined on a later occasion.


Judgment accordingly.






CRIMINAL


Case management - disclosure - preliminary proceedings - written submissions

R v K & Others: CA (Crim Div) (Sir Igor Judge (Queen's Bench Division President), Mr Justice Mitting, Mr Justice Fulford): 4 April 2006


The applicants applied for permission to appeal against rulings made in the course of preparatory hearings.


Held, where a judge thought it appropriate, new case management powers permitted him to deal with issues preliminary to the trial exclusively by reference to written submissions and also permitted the submissions to be limited to a length specified by him. A judge was not bound to allow oral submissions and was certainly entitled to put a time limit on them. The public element necessary in any hearing would be sufficiently achieved if the defendants were supplied with copies of the written submissions and representatives of the media, present at court, were similarly supplied.


Case management decisions were case-specific and the court was not prescribing any particular method of approach. The new Criminal Procedure Rules 2005 imposed duties and burdens on all the participants in a criminal trial, including the judge, and the preparation and conduct of criminal trials was dependent on and subject to these rules.


Principles relating to disclosure were clearly set out in the Protocol for the Control and Management of Unused Material in the Crown Court. That protocol should be applied by trial judges, and those who act for the prosecution and the defence should ensure that they familiarised themselves with it.


Judgment accordingly.






NEGLIGENCE


Causation - depression - fatal accident claims - foreseeability - suicide

Eileen Corr (administratrix of the estate of Thomas Corr, deceased) v IBC Vehicles Ltd: CA (Civ Div) (Lords Justice Ward, Sedley, Wilson): 31 March 2006


The appellant (C) appealed against the decision that she was not entitled to damages following the suicide of her husband (D) in a claim against his employer (V).


D had been badly injured in a factory accident that V admitted had been caused by its negligence or breach of statutory duty. D subsequently suffered post-traumatic stress disorder and was later treated in hospital for depression. Some six years after the accident, he committed suicide.


C brought a claim against V on behalf of his estate and under the Fatal Accidents Act 1976. The judge held that V had been in breach of its duty of care but that the duty did not extend to a duty to take care to prevent D's suicide and that his suicide was not reasonably foreseeable. C contended that the only requirement was the foreseeability of some injury, and that depression and consequent suicide lay within the scope of the employer's duty. V contended that the duty did not extend to a duty to protect D from self-harm and that the suicide broke the chain of causation between the negligence and its consequences.


John Foy QC, Andrew Ritchie (instructed by Rowley Ashworth) for the appellant; Jeremy Cousins QC, John Brennan (instructed by Moran & Co) for the respondent.


Held, (Lord Justice Ward dissenting on the question of reasonable foresight) on the evidence, D's suicide did not break the chain of causation between V's negligence and the consequences of the suicide, Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 considered.


C did not need to establish that, at the time of the accident, D's suicide was reasonably foreseeable as a kind of damage separate from psychiatric and personal injury. Responsibility for the effects of suicide depended on whether it flowed from a condition for which, by reference to appropriate foreseeability criteria, the defendant was responsible. In this case, C founded her claim on depression, which was admitted to have been a foreseeable consequence of V's negligence, and the uncontroverted evidence was that suicide was a not uncommon consequence of severe depression. The compensable consequences of the depression included D's eventual suicide.


Appeal allowed.