Law Reports

EDUCATION



Examinations - universities - student criticising examiners - substance of allegations

George Van Mellaert v Oxford University & Ors: QBD (Mr Justice Gray): 29 June 2006



The appellant (V) appealed against a decision of the master to strike out the claim form and particulars of claim issued by him in his action against the respondent university (O).



V, a Belgian national, had been a research student at O. Two professors (M and C) were appointed as his examiners. C was a French professor. They concluded that his thesis, which concerned an aspect of Belgian law, was not of the standard required for either of the degrees for which he had been studying.



V expressed concerns about his examination, asserting, among other things, that: the examiners were inadequate; C had given the impression of being completely ignorant about the thesis, probably because of impaired understanding resulting from a language barrier; M had been unable to follow and understand questions asked in French by C at his oral examination; and M was very inexperienced.



The examiners' decision was upheld by the senior proctor and, on appeal, by the high steward. The master considered that V's particulars of claim were inadequate and ordered him to file and serve amended particulars. Having concluded that the amended particulars did not cure the defects identified, the master struck out the claim form and particulars of claim. The issue was whether the claim form and particulars of claim, as amended, disclosed reasonable grounds for bringing the claim.



No appearance or representation for the appellant; Clive Lewis (instructed by Berrymans Lace Mawer) for the respondent.



Held, the reformulated particulars of claim did not disclose reasonable grounds for bringing the claim. M and C had been eligible for appointment under the relevant regulations. M had undertaken research in the relevant areas of work, and his relative youth was no reason for disqualifying him. C had been proposed by V himself, and it had been appropriate to appoint a French academic lawyer with experience of European legal codes and procedures.



Furthermore, there was no validity in V's criticisms that part of his oral examination had been conducted in French. The evidence indicated that C's English was good enough for him to have understood V's thesis and his answers to questions during the interview, and there was no basis for any suggestion that M and C had not been able to understand each other. The root of V's complaint related to the criticisms made of his thesis by M and C.



However, the validity of the reasons that had led M and C to make the recommendation that they had in relation to V's thesis was a matter of academic judgment with which it would be inappropriate for the court to interfere (Clark v University of Lincolnshireand Humberside (2000) 3 WLR 752, R v Her Majesty in Council, Ex p Vijayatunga (1990) 2 QB 444 and R v The CranfieldUniversity Senate, Ex p Bashir (1999) ELR 317 applied).



Appeal dismissed.





SHIPPING



Consent - demurrage - laytime - loading - voyage charterparties - charterer's consent to early commencement of laytime - early loading - written consent - laycan - laydays

Tidebrook Maritime Corp v Vitol SA sub nom Front Commander: CA (Civ Div) (Lords Justice Buxton, Rix, Scott Baker): 5 July 2006



The appellant shipowner (T) appealed against the decision ((2005) EWHC 2582 (Comm), (2006)] 1 Lloyd's Rep 353) that the respondent charterer (V) had not consented to the early commencement of laytime.



T had chartered its tanker to V on a tanker voyage charterparty on the Asbatankvoy form, as amended. Clause 5 of the Asbatankvoy terms provided that laytime should not commence before the date stipulated except with V's sanction, and clause 6 provided that laytime would commence six hours after receipt of notice of readiness or on the vessel's arrival in berth, whichever occurred first.



The charterparty incorporated Vitol's general voyage chartering terms (amended 1 November 1999) with amendments. Clause 31 of the terms provided that the vessel could not tender notice of readiness prior to the earliest layday date specified in the charterparty, and that laytime could not commence before 6am local time on the earliest layday, unless V consented in writing. Clause 33 provided that if V permitted the vessel to tender notice of readiness and berth prior to the commencement of laydays, all time from berthing until the commencement of laydays was to be credited to V against laytime or time on demurrage, with saved time to be split 50/50 between T and V.



The vessel had arrived at the loadport and tendered notice of readiness on the day before the first layday. The vessel berthed at midday and loading commenced that day.



Demurrage was incurred on the voyage, but T gave V credit for six hours against the total loading time beginning on berthing, as half the time between berthing and the commencement of the first layday.



V paid the majority of the demurrage claim, but contended that it had never consented to early commencement of laytime and that the credit of six hours should be applied to laytime beginning at 6am on the first layday.



The judge agreed with V's contentions. T contended that the two elements of clause 31, the tendering of a notice of readiness prior to the earliest layday date and the commencement of laytime before 6am on the earliest layday, were inextricably linked as two parts of a single whole, so that consent to one was consent to the other, and that V had given such consent by e-mails sent before the vessel's arrival at the load port, confirming that notice of readiness would be tendered on arrival and that the vessel would berth and load as soon as instructed by the terminal.



V submitted that although it had consented to early tender of the notice of readiness, early berthing and early loading, it had not consented in writing, as required by clause 31, to the separate requirement of the early commencement of laytime.

Timothy Young QC, Socrates Papadopoulos (instructed by Davies Johnson & Co) for the appellant; Tim Brenton QC (instructed by Ince & Co) for the respondent.



Held, subject to the express provisions of V's clauses 31 and 33, the combination of clauses 5 and 6 of the Asbatankvoy terms meant that: the start of laytime under clause 6 was postponed to the beginning of the earliest layday, unless V had sanctioned otherwise. V was not obliged to commence loading before the earliest layday if it did not want to load, but if it did, it was entitled to, once the vessel was presented as ready to load; and once V had asked or ordered the vessel to load earlier than V was obliged to load, V had sanctioned the earlier commencement of laytime and the protection of the provision regarding the earliest layday was spent, and clause 6 ruled as the clause otherwise governing the commencement of laytime. Authority did not require a different answer (Pteroti v National Coal Board (1958) 1 Lloyd's Rep 245 and Glencore Grain Ltd v Flacker Shipping Ltd (mvHappy Day) (2002) 2 All ER (Comm) 896 considered).



If a charterer used a vessel known to be ready at the time of use that had been tendered to him by a valid notice of readiness, he had to expect laytime to run against him, allowing for any relevant notice time and subject to any express contrary agreement.

V had clearly waived its right not to be required to load the vessel prior to the first layday. The express prohibition in clause 31 on tendering notice of readiness prior to the earliest layday, which would otherwise have overridden Asbatankvoy's clause 6 obligation to tender notice of readiness on arrival, had been waived with V's consent, and, as required by clause 31, that had been done in writing.



Therefore, clause 33 was in operation, since V had permitted, and indeed ordered, the vessel to tender notice of readiness and berth prior to the commencement of the laydays. In those circumstances, no further consent was required for the early commencement of laytime, since the notice of readiness was the trigger for V's accountability for laytime.



The proper construction of clauses 31 and 33 together was that time used in loading or discharging from berthing was prima facie to count against V, but was to be credited back to it to the extent that it occurred before the earliest agreed layday. The provision in this case for time saved to be shared meant that V was credited with only half the time concerned.



Appeal allowed



DAMAGES



Airlines - breach of contract - causation - compensation - inconvenience - measure of damages - mental distress - non-pecuniary loss - remoteness - tickets - airline passenger refused permission to travel on flight - breakdown in health

Raphael Wiseman v Virgin Atlantic Airways Ltd: QBD (Mr Justice Eady): 29 June 2006



The claimant (W) claimed damages for breach of contract against the defendant airline (V).



W had purchased a return ticket from the UK to Nigeria. When W presented his return ticket in Nigeria, V refused to let him on the flight, accused him of having a fake passport and ridiculed him in front of a group of friends from his church. He was eventually permitted to return to the UK 12 days after his scheduled flight. Following his return, his relationship with his fiancée (B) broke down. During the time he was forced to remain in Nigeria, he was assaulted by robbers. V admitted liability from the outset; the main issue to be determined was the quantification of W's compensation.



The claimant in person; Katherine Howells (instructed by Clyde & Co) for the defendant.



Held, the only sums recoverable were the legitimate expenses that W had incurred as a result of V's failure to honour the return ticket. That head of damage included costs of accommodation, food, transport, telephone calls, and postage.



W could not recover expenses incurred by B as a result of his prolonged stay in Nigeria. Such sums were not recoverable because she had no contractual relations with V and her expenses did not flow from V's breach. In any event, it was too remote.



Moreover, it could not be said, on the balance of probabilities, that V's breach of contract actually caused W's relationship with B to breakdown, but even if it did, there could be no claim for distress (Watts v Morrow (1991) HLR 608 considered).



W could not claim for the expenses incurred by his friends from the church as the damage was too remote.



W's non-pecuniary losses were irrecoverable. Compensation for injury to reputation, hurt feelings or mental trauma could not be recoverable and the damage was too remote. While in some circumstances it could be appropriate to compensate for a breakdown in health, it would have had to be demonstrated that, at the relevant time when the contract was entered into, it had been the contemplation of the parties that such a breakdown would be 'a not unlikely consequence' of a breach.



However, it could not have been said to be in the contemplation of V and W that the mere fact of not permitting a passenger to board the aircraft would lead to a breakdown in health.



Although it was clear that if W had not been forced to remain in Nigeria, the robbery would not have occurred, the consequences of the attack could not be compensated by way of damages for the breach. V's refusal to permit him on the flight was not the causa causans of the robbery, but the causa sine qua non(Burton v Pinkerton (1866-67) LR 2 Ex 340 applied, Hobbs v London& South Western Railway Co (1874-75) LR 10 QB 111 and Cook v Swinfen (1967) 1 WLR 457 considered).



Damages assessed.



COSTS



Civil procedure - circumstances where wasted costs orders should be considered

(1) Regent Leisuretime Ltd (2) Stephen Amos (3) Peter Barton (claimants) v (1) Philip Skerrett (2) Ken Pearson (defendants) & Reynolds Porter Chamberlain (third party): CA (Civ Div) (Lords Justice Mummery, Lloyd-Jacob): 4 July 2006



The appellant third party firm of solicitors (R) appealed against the judge's decision that the issue as to whether the firm should be liable for wasted costs should be investigated.



The first claimant company (L), the second claimant (D) and the third claimant (B), who were directors and shareholders of L, had issued proceedings against the first and second defendant solicitors (S and P) alleging professional negligence in the performance of their duties in earlier proceedings. R, who had been instructed to act in the matter by P's insurers, acknowledged service of the claim form on behalf of both S and P, although R had no instructions from S and did not contact him in connection with the matter.



R subsequently served a defence, and further amended defences on behalf of both P and S. When P informed S of R's actions, S contacted R and stated that the firm had no authority to act for him. As S had not been served personally with the claim, he then assumed that it was not proceeding against him.



However, R later contacted S informing him to prepare for trial in the matter. S applied for the claim against him to be struck out. The judge granted the application on the grounds that S had been an undischarged bankrupt at the time the claim was issued and no permission had been sought from or given by the court to bring proceedings against him, and the proceedings had never been served on S.



S then applied for an order that R pay, on an indemnity basis, all his costs lost, wasted or thrown away. D and B made a similar application on their own behalf.



The judge found that it was obvious that R had had no authority to act as it had, and considered that the issue as to whether R should be liable for wasted costs should be investigated. R contended that the judge had erred in his decision because he had not received the required quantification of the costs sought to decide whether those costs were likely to be awarded, or whether a separate hearing would be proportionate.



D and B submitted that, if R had not acknowledged service on S's behalf, they would have served him another way, so that their pre-trial costs had been wasted. S submitted that, as a result of R's conduct, he had incurred costs in trying to extricate himself from the action.



Andrew Nicol (instructed by Reynolds Porter Chamberlain) for the appellant; the first, second and third respondents in person.



Held, the referral to the second stage of the issue, as to whether wasted costs should be awarded, was only sensible if the scope of the costs sought was narrow and clear. In this case, there had been insufficient material for the judge to make that determination. S, D and B were all litigants in person and their recoverable costs would, in any event, be limited.



Furthermore, both D and B had, in any event, incurred costs in pursuing the action against P, and their wasted costs in respect of the claim against S were likely to be modest. Moreover, so far as S was entitled to recover his costs in applying for the claim to be struck out, the parties liable for those costs were D and B, as in the light of S's status as an undischarged bankrupt, no claim against him should have been made. The judge's order for assessment of wasted costs was, accordingly, set aside.



Appeal allowed.



HUMAN RIGHTS



Penology and criminology - discretionary life imprisonment - life prisoners - release on licence - return to custody - right to liberty and security

Hirst (appellant) v Secretary of State for the Home Department (respondent) & Parole Board (interested party): CA (Civ Div) (Sir Igor Judge (President QB), Lord Justice Scott Baker, Lady Justice Hallett): 6 July 2006



The appellant (H) appealed against the decision ((2005) EWHC 1480 (Admin)) that the scheme under section 32 of the Crime (Sentences) Act 1997 for recall to prison of life-sentence prisoners who had been released on licence was compatible in principle with article 5 of the European Convention on Human Rights.



H had been convicted of manslaughter and sentenced to life imprisonment on the basis that he represented a serious, long-term public danger. After more than 20 years in prison, he had been released on licence, but because of his behaviour his licence had been revoked three months later under section 32 of the 1997 Act and he had been recalled to prison.



At a Parole Board hearing, the board found that his recall had been fully justified, but ordered his release under section 32(5). H brought judicial review proceedings challenging a number of different aspects of his recall to custody. The judge held that there had been an impermissible delay in informing H of the reasons for his recall and in providing him with a 'recall dossier', but dismissed claims that there had been an impermissible delay in the Parole Board's procedures and that the entire statutory scheme for recall was incompatible with article 5 of the convention.



H submitted that section 32 empowered the Secretary of State to effect the immediate return of a life-sentence prisoner to prison by revoking his licence, either on his own initiative or on the recommendation of the Parole Board, and that, in either case, the decision was made by the executive, since the Parole Board was not acting in a judicial capacity, and that was incompatible with article 5.



H also submitted that he was entitled to the safeguard of some kind of judicial determination, given that once he had been released on licence, the link between his conviction for manslaughter and any possible recall was broken.



F Krause (instructed by AS Law) for the appellant; Parishil Patel (instructed by the Treasury Solicitor) for the respondent; Steven Kovats for the interested party.



Held, the starting point was that section 32 addressed the recall to prison of an offender sentenced to discretionary life imprisonment. The link between H's conviction and his article 5 entitlements was not broken when he was released on licence (Weeks v United Kingdom (1987) 10 EHRR 293 applied).



However, that did not mean that a life prisoner released on licence was outside the protective ambit of article 5. There had to be a sufficient causal connection between the conviction and the deprivation of liberty at issue. Provided the circumstances under which the original sentence was imposed were sufficiently reflected in those that pertained at the time when the recall order was made, the recall of a prisoner subject to a discretionary life sentence did not contravene article 5(1)(a) (Weeks applied; Stafford vUnited Kingdom (2002) 35 EHRR 32 and Waite v United Kingdom (unreported, 10 December 2002) considered).



The recall and consequent detention followed a conviction by a competent court and did not have to be justified again on the basis of any other provisions in article 5. In this case, H's recall was justified in law by the link between the discretionary sentence of life imprisonment imposed following his conviction for manslaughter and his behaviour during the short period while he was living in the community on licence, which gave rise to realistic concerns for public safety. The statutory scheme in section 32 was compatible with article 5 of the convention.



Appeal dismissed.