CIVIL PROCEDURE

Animal welfare - demonstrators - experiments - harassment - injunctions - laboratories - noise - protected persons - extension of exclusion zone - ban on use of noise amplification devices

(1) The chancellor, masters & scholars of Oxford University (Oxford University) (2) David Robert Holmes (registrar of Oxford University) (for and on behalf of the employees and members of the university) (3) Jennifer Gregory (for and on behalf of the employees and shareholders of the contractors, sub-contractors and suppliers to the university) (4) Oxford University Fixed Assets Ltd (for and on behalf of the sub-contractor and suppliers of the university) v Mel Broughton and 12 ors: QBD (Mr Justice Holland): 26 May 2006



The applicant university (O) applied for an extension of its existing injunction against the respondent animal rights activists (D). O was engaged in the construction of a research laboratory in order to accommodate experimentation on living animals. D objected to the experimentation and had, allegedly, adopted intimidatory conduct against those connected with the university, including the building contractors, in an attempt to stop the construction.


O obtained an interim injunction against D to prevent harassment. The order permitted demonstration opposite to the main entrance to the laboratory site each Thursday afternoon, but banned protest within a designated exclusion zone that covered the immediate vicinity of the site. Undertakings were accepted from the first and third respondents who gave similar undertakings in the instant proceedings. O obtained further relief, namely a ban on the use of megaphones and other means of amplification, and a ban on using video camera or camera within the exclusion zone but the use of the megaphone was later permitted for one hour during the Thursday demonstrations.


O submitted that the exclusion zone was too small and should be increased in size to prevent protesters loitering at the edge of the existing zone with a view to monitoring the movements of site traffic as a prelude to identification and harassment of contractors and their employees; the order banning the use of megaphones should be restored; and the number of people permitted by the original order to congregate at the designated point for a Thursday protest should be reduced from 50 to 12.


Charles Flint QC, Timothy Lawson-Cruttenden, Brian Kennelly (instructed by Lawson-Cruttenden & Co) for the applicants; Marc Willers (instructed by Moss & Co) for the first and eleventh respondents; Stephanie Harris (instructed by Moss & Co) for the ninth respondent.


Held, the present exclusion zone was too small and should be moderately increased in size, Burris v Azadani [1995] 1 WLR 1372, considered. The zone aimed to counter intimidation and harassment, and could not be justified if its configuration invited angry assemblies outside or close to public entrances. The zone required extending so as to terminate well away from any entrances. Any impromptu demonstration was thereby well removed from the entrances.


All noise amplification devices within the exclusion zone, save on the occasion of a lawful peaceful assembly conducted in compliance with the Public Order Act 1986, should be banned. Balancing the interests of the protesters concerned to advance a message and the impact of the amplified protest noise on the captive audience going about their lawful business in the adjoining buildings, the use of the megaphone on hourly occasions for an indefinite period could not be justified.


There was no justification for reducing the number of people permitted to congregate at the designated point for a Thursday protest.


Any procession should be in compliance with the requirements of the 1986 Act. A peaceful and lawful procession could enter the exclusion zone.


O was entitled to a restraint on publication of material serving to identify a person protected by the injunction. However, once a protected person waived anonymity for media purposes, there could be no reason to inhibit a media response that referred to that person by name.


The order banning the use of video cameras or cameras should be set aside. While O had reason to seek to restrain the use of a camera as an aide to identification of protected persons and their vehicles, that could be dealt with by an order specific to the problem instead of a wide all-embracing order.


An order reflecting a balance of competing interests on the basis of current evidence inevitably needed subsequent reconsideration from time to time in the light of experience and future developments. Application granted.





COSTS


Assessment - conditional fee agreements - costs capping orders - expenditure - legal costs insurance - CFA-assisted claimant with no ATE cover - risk to defendants - extravagant expenditure

Andrew Knight (aka Bowvanyne) v (1) Beyond Properties Pty Ltd (2) Beyond International Ltd (3) Beyond International Services Ltd (4) Discovery Communications Inc: ChD (Mr Justice Mann): 26 May 2006


The applicant companies (B) applied for a costs-capping order against the respondent (K), who had brought an action against them alleging passing-off. B sought a costs-capping order because K was instructing solicitors under a conditional fee agreement (CFA), and he did not have after-the-event (ATE) insurance cover.


B claimed there had been extravagant expenditure, a strong indication that it would continue and no reason to suppose it would stop. B contended that in the case of King v Telegraph Group Ltd [2004] EWCA Civ 613; [2005] 1 WLR 2282, Lord Justice Brooke had stated that the existence of a CFA-assisted party without ATE cover was sufficient, without more, to create risks to the other party so that a costs-capping order became justified, or at least justifiable. B claimed that in any event there was evidence of extravagant or excessive expenditure.


Benet Brandreth (instructed by Field Fisher Waterhouse) for the respondent; Charlotte May (instructed by DLA Piper Rudnick Gray Cary) for the applicants.


Held, Lord Justice Brooke's remarks in King were made in the context of a defamation action. He was not laying down wider principles applicable to all litigation (Campbell v MGN Ltd [2005] UKHL 61; [2005] 1 WLR 3394 and King distinguished). The court would only consider making a costs-capping order where it was established on evidence that there was a real risk of disproportionate or unreasonable costs being incurred and that risk could not satisfactorily be provided for by more conventional means, such as the usual costs assessment after the trial (Smart v East Cheshire NHS Trust [2003] EWHC 2806 (QB); (2004) 80 BMLR 175, followed).


It was the costs judge's role to filter out the sort of extravagant costs that had, in some cases, led to the making of a costs-capping order. In the instant case, the fact that there was a CFA with a large mark-up, with no ATE cover, was not in itself enough to justify a costs-capping order. The evidence showed clear suggestions of potentially extravagant costs expenditure, but that could be dealt with in the usual way by post-trial costs assessment. Application refused.




Conditional fee agreements - costs - postponement - success fees - postponement of charges - apportionment of success fee - requirement to identify apportionment

Jill Brennan v Associated Asphalt Ltd: Supreme Court Costs Office (Senior Costs Judge Hurst): 18 May 2006


The court was required to determine, as a preliminary issue in costs proceedings, whether a CFA between the claimant (C) and her solicitors was enforceable.


C had entered into a CFA with her solicitors in relation to a claim against the defendant (D) for personal injuries that she had suffered. C's claim was settled but the issue of costs remained outstanding. D took the view that the CFA was in breach of the Conditional Fee Agreements Regulations 2000, as it did not specify how much of the success fee was attributable to the deferral of payment from C to her solicitors in respect of their charges and disbursements.


In the instant proceedings, issues arose as to whether the CFA was in breach of regulation 3(1)(b) of the regulations; and whether, if the CFA was in breach of regulation 3(1)(b), that breach was material.


Nicholas Bacon (instructed by Stone King) for the claimant; Robert Marven (instructed by QM Solicitors) for the defendant.


Held, regulation 3(1) was perfectly clear: a CFA had to specify how much of the percentage increase related to the cost of postponement. The words 'if any' in regulation 3(1)(b) did not mean that if the deferral element was nil, there was no need to mention it. Those words were there to ensure that a client was left in no doubt as to the position, even if the deferral element was nil (Hollins v Russell [2003] EWCA Civ 718; [2003] 1 WLR 2487, applied). In the instant case, there had been a breach of regulation 3(1)(b) as the CFA failed to specify how much, if any, of the success fee related to the postponement of C's solicitors' fees and expenses.


The breach of regulation 3(1)(b) was not a material breach. There was no materially adverse effect on C's consumer protection, as the failure to specify a postponement element meant that nothing in respect of that element would ever be recoverable from C. On the facts, there had never been an intention to charge C any postponement element, nor did it form any part of the success fee. In addition, on the facts, the breach did not have a materially adverse effect on the administration of justice, Hollins applied. Accordingly, the CFA was, in principle, enforceable and reasonable, and proportionate costs under it were recoverable. Preliminary issues determined.




Conditional fee agreements - costs - materiality - public policy - success fees - variation - enforceability - deed of variation - severance

Owen John Oyston v Royal Bank of Scotland Plc: Supreme Court Costs Office (Senior Costs Judge Hurst): 16 May 2006


The court was required to determine, as preliminary issues, matters raised by the defendant bank (D) in relation to the validity and enforceability of a CFA entered into between the claimant (C) and his solicitors.


C had entered into a CFA with his solicitors that provided for a 100% success fee and payment of a bonus in the event that he recovered damages in excess of a certain amount. C subsequently entered into a deed of variation that removed the reference to the bonus payment. D maintained that the CFA was invalid as it was in breach of section 58(4) of the Courts and Legal Services Act 1990.


C submitted that the original CFA had been rectified by a consensual deed of variation and it was possible to vary the agreement retrospectively; the departure from the statutory requirement had not had a materially adverse effect on the protection afforded to the client as the condition for triggering the bonus fee had not been met; and the use of severance was possible as the removal of the bonus element would not change the contract.


Jeremy Morgan QC (instructed by Wacks Caller) for the claimant; Ian McLaren QC (instructed by DLA Piper Rudnick) for the defendant.


Held, the CFA was in clear breach of section 58(4) and the deed of variation was ineffective to rectify the situation as against the paying party. It had only been entered into when it was realised that the original CFA had a potentially fatal effect and it could not be right that a deed of variation could be used to impose a greater burden on the paying party than existed before judgment (Kellar v Stanley A Williams [2004] UKPC 31, applied). The fact that C was in agreement to the variation was of no assistance.


A breach of sections 58(4)(b) and (c) would inescapably have a materially adverse effect on the proper administration of justice. C's argument on materiality therefore failed (Jones v Caradon Catnic Ltd [2005] EWCA Civ 1821, applied).


Severance was not available to C as it would be contrary to public policy to permit it. If either a deed of variation or severance were to be permitted, this would have the effect of enabling virtually all defective CFAs to be put right late in the day, even if it was only after the paying party had pointed out the alleged defects. That would not accord either with the statutory framework laid down for CFAs or with the correct approach to public policy.


In the circumstances, the CFA was unlawful and unenforceable (Spencer v Gordon Wood (T/A Gordon's Tyres) (A Firm) (2004) The Times, 30 March and Awwad v Geraghty & Co [2000] 3 WLR 1041, applied). Preliminary issues determined.





HEALTH


Duty of care - foetus - foreseeability - genetic testing - limitations - proximity - wrongful birth - clinical negligence - duty of care owed by third-party laboratory

(1) Hanan Basem Farraj (2) Basem M Farraj (claimants) v King's Healthcare NHS Trust (defendant/part 20 claimant) and Cytogenetic DNA Services Ltd (part 20 defendant): QBD (Mr Justice Swift): 26 June 2006


On a trial of preliminary issues, it fell to be determined whether the part 20 defendant (C) owed a duty of care to the claimant mother (F). F had claimed damages against the defendant NHS trust for the wrongful birth of her son. The child was born with a severe hereditary blood disease and it was alleged that the trust had failed to diagnose the condition during pregnancy, and that the pregnancy would have been terminated had such a diagnosis been given.


C, a private cytogenetics laboratory, had been responsible for culturing a chorionic villus sample provided by F so that the trust could carry out DNA testing on it. The sample provided by F was poor, and it was thought that a mixture of F's own cells with those of the foetus in the sample had led to the misdiagnosis. C had argued that it was instructed only to culture the sample tissue and that it was offering a limited service for only £80 whereby it was not possible to discriminate positively between fragments of foetal and maternal tissue. F had not been aware at the time of C's involvement in the testing process.


The issue for determination was whether C owed a common law duty of care to F, rendering it capable of being liable to F for the same damage as the trust within the meaning of the Civil Liability (Contribution) Act 1978. F submitted that it was foreseeable that if C carried out its work in a sub-standard fashion that significantly affected the quality and the reliability of the cultured sample, then DNA testing could be compromised, leading to a continuing pregnancy, that would otherwise have been terminated, resulting in the birth of a disabled child. F argued that the damage was foreseeable and the relationship between them and C was sufficiently proximate.


C submitted that its role was extremely limited, which was reflected in the modest fee charged, and there was no relationship between it and F. C argued that it was for the trust to test for maternal contamination and to reflect the existence of any risk of contamination in its report to F.


Gerard McDermott QC, Harry Trusted (instructed by Simpson Millar) for the claimants; Jane Mishcon (instructed by Hempsons) for the defendant/ part 20 claimant; Prashant Popat (instructed by CMS Cameron McKenna) for the part 20 defendant.


Held, a sufficient relationship of proximity existed between F and C to found a duty of care. The lack of direct communication between F and C did not mean there was insufficient proximity to found a duty of care (Smith v Eric S Bush (A Firm) (1990) 9 Tr L 1, applied). F would have expected that a number of processes were involved in the testing, with laboratory staff testing the samples and doctors interpreting and reporting on the test results.


Whatever F's precise knowledge of the testing processes, she relied on each of the persons involved in carrying out those processes to exercise due care and skill in the performance of his or her function.


C should have been aware that parents in F's position would rely, whether directly or indirectly, on its skill and care. C must have contemplated F relying on its advice; for example, if the sample was insufficient or had become contaminated, then C's advice for a further sample would be communicated to F. Moreover, it was fair, just and reasonable that such a duty should be imposed. The relevant hospital trust would be liable to a person who suffered damage as a result of negligence that occurred in a hospital laboratory and it was difficult to see why a private laboratory should be in a different position.


C was under a duty to exercise reasonable skill and care in the performance of the services that it provided, in cleaning and sorting the sample, culturing cells from the sample and returning the cultured cells to the trust. The duty of care may also have extended to a duty to provide to the trust information that might materially affect the reliability of testing carried out on the relevant sample and a duty to have in place appropriate systems for communicating such information.


It was appropriate and equitable to allow F's application to join C as a second defendant. F gained knowledge that the damage was, or might be, attributable in whole, or in part, to the acts or omissions of C, sufficient to satisfy section 14(1) of the Limitation Act 1980, at the time when the defence was served. Although more than four years had elapsed, it was appropriate to apply the court's discretion as the possibility of a fair trial remained.


Preliminary issues determined in favour of the claimant.





HOUSING


Intentional homelessness - local authorities' powers and duties - duty to provide temporary accommodation - reasonable opportunity of securing accommodation for occupation

Therese Conville v Richmond-on-Thames London Borough Council: CA (Civ Div) (Lords Justice Pill, Keene and Gage): 8 June 2006


The appellant (C) appealed against the decision ([2005] EWHC 1430 (Admin); [2006] HLR 1) that the respondent local authority had complied with its duty under section 190(2)(a) of the Housing Act 1996 by securing that accommodation was available for her occupation for such period as it considered would give her a reasonable opportunity of securing further accommodation for her occupation.


C was a single mother of one son, aged 13 years. Having lost her accommodation, C had applied to the local authority for assistance with housing. She and her son had been provided with temporary bed-and-breakfast accommodation pending an assessment. The local authority then decided that C was homeless, had a priority need (as she had a dependent child) but also that she had become homeless intentionally.


The local authority gave C notice to leave the temporary accommodation and she issued proceedings claiming that the local authority had failed to secure that accommodation was available for her occupation for such period as would give her a reasonable opportunity of securing accommodation for her occupation pursuant to the section 190(2)(a). C had made genuine attempts to find accommodation but her problem was that she was unable to finance the deposit of one month's rent and the further month's rent in advance required by private landlords.


The judge held that the local authority had adequately discharged its duty under section 190(2)(a), which permitted it to take into account the resources available to it, the demand for housing in the area and the demand from those who were not intentionally homeless. C submitted that the language of section 190(2)(a) did not refer to the average or reasonable applicant or the resources of the local authority so that the duty on the local authority was to give assistance based on the individual needs and other relevant characteristics of the particular applicant.


Jan Luba QC, Liz Davies (instructed by Anthony Gold) for the appellant; Matthew Hutchings (instructed by the local authority solicitor) for the respondent.


Held, the duty with respect to accommodation under section 190(2)(a) was that it be made available for such period as the authority considered would give the applicant a 'reasonable opportunity of securing accommodation for his occupation'. That was something conferred on the applicant; a right he acquired coterminous with the extent of the duty. While the authority could decide, subject to the supervision of the court under ordinary principles, what amounted to a reasonable opportunity, the expression did not permit it, in doing so, to have regard to considerations peculiar to it, such as the extent of its resources and other demands on it. It was what was reasonable from the applicant's standpoint, having regard to his circumstances and in the context of the accommodation potentially available. It was the opportunity given to the applicant that had to be reasonable and not what was reasonable from the authority's standpoint (R (on the application of G) v Barnet LBC [2003] UKHL 57; [2004] 2 AC 208, distinguished).


What was reasonable was to be assessed by reference to the particular needs and circumstances of the applicant. Nevertheless, the word 'opportunity' connoted something temporary, which might lapse if not taken up or if taken without achieving the result desired. What amounted to a reasonable opportunity would depend on the particular circumstances, but it was an assessment the authority was capable of making without converting it into a duty to meet the applicant's needs. The duty to provide a reasonable opportunity fell short of a duty to provide long-term accommodation. Appeal allowed.





LEGAL PROFESSION


Arbitral proceedings - chinese walls - injunctions - solicitors - undertakings - effectiveness of measures taken to protect former client's confidential information - risk of disclosure

Gus Consulting GMBH v Leboeuf Lamb Greene & Macrae: CA (Civ Div) (Lords Justice Brooke (V-P), Mummery and Scott Baker): 26 May 2006


The appellant (G) appealed against a decision ([2005] EWHC 2527 (Comm)) dismissing its application for an injunction to prevent the respondent solicitors (L) from representing a party (D) in an arbitration against G.


L had previously represented G in a series of transactions relating to Russian investments that were in issue, to some extent, in the arbitration. The arbitration had arisen out of an investment by D in shares in a Russian company. The shares had been misappropriated and D claimed that G was the true principal in the contractual arrangements through which D invested in the Russian company and that the transactions into which D entered were shams.


During the arbitration, D changed its representation and engaged L. G objected on the basis that there was a risk that client confidential information acquired by L from G, which was relevant to the Russian operations of G and to issues in the arbitration, would be disclosed or misused. Having regard to an ethical wall put in place, the unchallenged evidence of the members of L's arbitration team about their ignorance of, and lack of access to, G's information, undertakings offered by L to instruct staff previously involved with G's work not to discuss that work with members of the arbitration team or among themselves, and to change its working arrangements, the judge held that there was no real risk of disclosure or misuse of the confidential information and no need to grant an injunction.


G submitted that the judge had misapplied the relevant legal principles, that there was a real risk of disclosure and misuse of confidential information, and that the undertakings offered were inadequate protection for G.


Andrew Lydiard QC (instructed by Speechly Bircham) for the appellants; Lord Neill QC, Mark Hoyle (instructed by the in-house solicitor) for the respondents.


Held, there was no need for a restraining order against acting or advising in an adverse interest if the court was satisfied, on the basis of clear and convincing evidence, that all effective measures had been taken to protect the former client's confidential information from the risk of disclosure and misuse (Koch Shipping Inc v Richards Butler (A Firm) [2002] EWCA Civ 1280; [2003] PNLR 11, applied).


The effectiveness of the precautions taken was a matter of judgment for the court of first instance and the instant court would only interfere if satisfied that the judge's assessment of the position was wrong. The judge had correctly directed himself as to the relevant legal principles. Detailed undertakings had been offered to the court that would minimise the risk of disclosure or misuse of confidential information and there was every reason to believe that the undertakings would be observed.


The combined effect of the undertakings, the ethical wall system erected by L in accordance with established procedures, and the unchallenged evidence of the members of the arbitration team about their ignorance of and lack of access to G's information, and the unquestioned professional integrity of all those involved in L, was sufficient to entitle the judge to conclude that the various precautions taken would effectively protect G from disclosure or misuse of their confidential information. In the circumstances, it was not possible to say that his decision to refuse an injunction was wrong within rule 52.11(3)(a) of the Civil Procedure Rules 1998. Appeal dismissed.