FAMILY

Children's welfare - international child abduction

Re M (A Child): CA (Civ Div) (Lords Justice Thorpe and Wall): 18 May 2006



The appellant mother (M) appealed against the dismissal of her claim for the return of her 14-year-old son (S) to France under the Child Abduction and Custody Act 1985.


M, S and the father (F) were French. M and F were not married but had had a long relationship before they separated. After contested proceedings, the French court made an order for joint parental responsibility, with residence to M and contact to F. The parties were prevented from leaving France with S without the other's express consent.


In breach of the order, F and S had travelled to the UK. M issued proceedings under the Child Abduction and Custody Act 1985. The proceedings took nearly five months to be heard and, in the meantime, the French court granted sole parental authority to M. The judge dismissed the claim on the basis that the evidence established that S's objection to return had been made out and that the discretionary balance came down against a return order.


M submitted that the judge had failed to give sufficient weight to the French court process, the French court being fully seised in the welfare case to settle S's future.


Marcus Scott-Manderson (instructed by White & Sherwin) for the appellant; Michael Hosford-Tanner (instructed by Percy Short & Cuthbert) for the first respondent; Henry Setright QC (instructed by Reynolds Porter Chamberlain) for the second respondent.


Held, the judge had erred in the exercise of his discretion. On the application for return, the judge had to weigh only the nature and strength of S's objection against the policy of Council Regulation 2201/2003 and the fact that the essential welfare investigations and decisions had to be taken in France. S's objections would be met by the protective measures available in France. The judge had been wrong to give weight to S's misconception that he would not receive a fair hearing in France. The judge had wrongly taken into account welfare considerations that article 11(3) of the regulation was designed to eliminate from the account.


If judgment had been given in accordance with the time limits in the regulation, education and disruption issues could hardly have come into the reckoning. Nowhere did the judge refer to the requirement for maximum expedition or to the extent to which article 11(3) had been breached. The policy of the Hague Convention on the Civil Aspects of International Child Abduction 1980, buttressed by the provisions of the regulation, outweighed the fact that S's objection to return was made out.


For S's defence under article 13 of the convention to prevail over the policy of the convention, there had to be something in the facts that made the case exceptional.


Administrative procedures should be implemented in the Family Division to ensure compliance with the timetables under the regulation. Appeal allowed.






PARTNERSHIP



Legal profession - law firms - partners - partnership agreements - profits

Robert Heywood Ogden Lees v (1) M Young Legal Associates Ltd (2) Zahid (A Firm) (3) Sameera Sharif (4) Jamail Akhtar Sharif (5) Zahid Bashir: CA (Civ Div) (Lords Justice Tuckey, Wilson and Hughes): 16 May 2006


The appellant (L) appealed against a decision that he was a partner in a firm (Z).


L became a partner in Z, a firm of solicitors, in order that the practice would meet the criteria of rule 13, paragraph 2 of the Solicitors Practice Rules 1990, namely that the practice had at least one principal who was a solicitor qualified to supervise. A company (M) issued proceedings against Z for sums said to have been due, and alleged that L was a partner and, accordingly, pursuant to section 9 of the Partnership Act 1890, was liable to it, jointly with the other partners.


L denied that he was a partner and, accordingly, a preliminary issue was raised to determine his status. L stated that he was asked to join the practice so that Z could satisfy the 1990 rules, and that it was agreed with the other partners that L would not contribute any capital to the firm, and that L would receive a fixed annual sum from the firm. He further argued that his position was little more than a figurehead.


The judge declared that L was a partner of Z. L argued that unless he was entitled to participate in the profits of the firm, including being entitled to a fixed payment directly linked to, and dependent upon, its profits, he was not in law a partner.


Mark Blackett-Ord (instructed by Wacks Caller) for the appellant; Andrew McGee (instructed by Pearson Hinchliffe) for the first respondent; no appearance or representation for the second respondent; the third, fourth and fifth respondents in person.


Held, an agreement for a person to be paid a specific sum for work to be done by him on behalf of a firm did not preclude his thereby becoming a partner in it (Stekel v Ellice [1973] 1 WLR 191, applied).


Furthermore, the words of the core definition, as contained in section 1(1) of the 1890 Act, were wide enough to render the recipient of payments in a fixed sum a partner provided that there was a business, that it was carried on with a view to profit, and, crucially for the instant case, that he was carrying it on in common with another or others. It was inconsistent with section 1(1), and so not permitted by section 46, to graft on to its words the previous requirement of the common law for participation in profits. The provisions for payments to L of a fixed sum and for him not to be required to contribute capital to the firm pointed to the absence of a partnership.


However, the need for the practice to comply with rule 13 of the 1990 rules was determinative. Its effect was that the firm could lawfully practice only if L was a partner in it. In that L and the other partners intended to comply with rule 13, they must have intended to enter into a contract of partnership.


Accordingly, the judge was correct to infer that, notwithstanding the provisions for the firm's payment to L and for the absence of a contribution on his part to its capital, they succeeded in implementing their intention. Appeal dismissed.






MEDIA


Libel - damages - media and entertainment - compensation - mitigation - newspapers - offer of amends - admissibility of directly relevant background material - assessment of compensation

David Turner v (1) News Group Newspapers Ltd (2) Arisara Turner: CA (Civ Div) (Lords Justice Pill, Keene and Moses): 16 May 2006


The appellant (T) appealed against the decision ([2005] EWHC 892 (QB)) awarding damages on his defamation claim under section 3(5) of the Defamation Act 1996, following the publication of an article in the newspaper published by the respondent (N).


N had made an unqualified offer of amends under section 2 of the 1996 Act. As required by that section, N had offered to publish a suitable correction and apology and to pay compensation and costs, but also gave notice that if agreement on compensation could not be reached, further matters would be relied on and N indicated what those further matters were.


T accepted the offer to make amends, and a correction and apology were published in N's newspaper. The amount of compensation could not be agreed and had to be determined by the court under section 3(5) on the same principles as damages in defamation proceedings. The judge held that he was entitled to take into account in mitigation of damages three matters relied on by N as directly relevant background material, the other matters having been withdrawn. He took a figure of £15,000 as the starting point for compensation, which he discounted by 40% to take account of the offer of amends and the surrounding circumstances.


T submitted that the judge had been wrong to hold that the evidence of particular facts providing directly relevant background context had been admissible in mitigation.


Desmond Browne QC (instructed by Campbell Hooper) for the appellant; Adrienne Page QC (instructed by Farrer & Co) for the respondent.


Held, although general evidence of a claimant's bad reputation was admissible in mitigation of damage in defamation cases, a claimant should not be subjected to a roving inquiry into aspects of his life unconnected with the subject-matter of the defamatory publication and specific evidence relating to such aspects could not be called in mitigation of damage (Scott v Sampson (1882) 8 QBD 491 and Spiedel v Plato Films Ltd [1961] AC 1090, considered).


However, the position was different in respect of matters directly relevant to the subject-matter of the libel, even though they did not establish the truth of the defamatory words. Evidence that could properly go before a jury in support of a plea of justification or fair comment could be taken into account in mitigation of damages if that defence failed. The line between evidence of general bad reputation and evidence of specific conduct giving rise to such a reputation was not easy to draw. The principle in Scott and Spiedel did not exclude particular facts directly relevant to the context in which a defamatory publication came to be made (Burstein v Times Newspapers Ltd [2001] 1 WLR 579, applied).


The decision in Burstein was not given per incuriam. If evidence was to qualify under the principle in Burstein, it had to be evidence that was so clearly relevant to the subject-matter of the libel, or to the claimant's reputation or sensitivity in that part of his life, that there would be a real risk of the jury assessing damages on a false basis if they were kept in ignorance of the facts to which the evidence related.


A Burstein plea could be relied on by a defendant in mitigation in the offer of amends procedure. However, if the allegations in such a plea were made improperly, or could not be made out, that would increase the award of compensation. In the offer of amends procedure, injury to feelings tended to play a more significant part in the assessment of compensation than was normally the case in the determination of damages, particularly where the claimant was not well known. In determining the extent of any injury to the claimant's feelings, evidence about his past conduct in the aspect of his life that was the subject matter of the libel might be particularly relevant.


The three matters relied on by N in mitigation were properly admitted in evidence. The judge had been entitled to adopt a two-stage process of assessing compensation and had not erred in principle in arriving at his starting point, nor in assessing the appropriate discount for the apology and correction and the events connected with them. Appeal dismissed.






TAX



Foreign companies - income tax - sportspersons

Andre Agassi v S Robinson (HMIT): HL (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance): 17 May 2006


The appellant Revenue & Customs appealed against the decision ([2004] EWCA Civ 1518; [2005] 1 WLR 1090) that section 555(2) of the Income and Corporation Taxes Act 1988 did not apply to companies with no tax presence in the UK, with the result that an international sportsman could not be assessed to income tax under section 556 of the Act in respect of payments by such companies to a company controlled by him with no UK presence in connection with his activities as a sportsman in the UK.


The taxpayer (T) was a professional tennis player. He was neither resident nor domiciled in the UK and never had been. In the relevant tax year he had played in tournaments in the UK.


T owned and controlled a company whose business included entering into contracts with manufacturers of sports clothing and equipment under which T sponsored or advertised the manufacturers' products in return for payments made to his company. Two such contracts had been entered into with companies that were not resident and did not carry on any trade in the UK.


Pursuant to those contracts, T's company received payments during the relevant tax year. The payments were not made in the UK. The Revenue amended T's self-assessment to include an additional income tax charge in respect of those payments on the basis that they had a connection of a prescribed kind with a relevant activity performed by T in the UK under the Income Tax (Entertainers and Sportsmen) Regulations 1987 and, therefore, fell within sections 555(2) and 556.


T submitted that Parliament could not have intended to subject foreign individuals, and companies with no residence or trading presence in the UK, to liability under section 555(2) and the 1987 regulations and to the tax-collection obligations that would require them to deduct income tax from the payments and account to the Revenue for the deducted sum.


The Revenue argued that if T were right, it would mean that foreign entertainers and sportsmen, who earned money from commercial sponsorship contracts connected with their professional activities in the UK, could avoid liability to tax on that money simply by ensuring that it was paid by a foreign company with no trading presence or assets in the UK.


Timothy Brennan QC, Bruce Carr (instructed by the Revenue & Customs Solicitor) for the appellant; Patrick Way, Nicola Shaw (instructed by Sharpe Pritchard) for the respondent.


Held (Lord Walker of Gestingthorpe dissenting), the legislative intendment in relation to sections 555 and 556 of the 1988 Act was that foreign entertainers and sportsmen who, or whose controlled companies, received payments in connection with their commercial activities in the UK should be subject to the charge to income tax and that the territorial principle or rule of construction should not be implied so as to limit the effect of the clear language of section 555(2).


It could not have been Parliament's intention that the tax liability imposed by section 556 could be so easily avoided. The disapplication of section 556 envisaged by section 556(5) required attention to the nature and status of the payment, not to the identity of the payer, which was irrelevant as a matter of construction of section 555(2). To know whether, for section 556(5) purposes, the payment was one to which section 555(2) applied, only two questions needed to be asked: first, had a payment been made, not being a payment of such kind as had been prescribed under section 555(6)? If yes, then second, had the payment a connection of a prescribed kind with the relevant activity?


If the answer was yes, then, for section 556(5) purposes, the payment was one to which section 555(2) applied. On that basis, any implied limitation read into section 555(2) for the benefit of overseas payers would not prevent a primary tax charge being levied on a sportsman or entertainer who performed an activity within the UK and received, or was treated as receiving, a payment from whatever source for that activity (Clark (HMIT) v Oceanic Contractors Inc [1983] 2 AC 130, considered). Appeal allowed.