CONTRACTS



Assignment - breach of contract - causes of action

Technotrade Ltd v Larkstore Ltd: CA (Civ Div) (Lord Justice Mummery, Lord Justice Rix, Mr Justice Peter Smith): 27 July 2006



The appellant surveying company (T) appealed against the decision on a preliminary issue ((2005) EWHC 2742 (TCC)) that a report compiled by T on the physical condition of development land prepared for the original owner (S) and assigned by S to the respondent (L), which had purchased the site, could be relied on by L in a claim for breach of contract against T in respect of damage caused by a landslip that occurred after the sale of the land and before the assignment.



S had commissioned T to produce a site investigation report on a sloping site. The report found that the site was satisfactory for the proposed residential development. S had then sold the land to L. While works were being carried out on the site, a landslip occurred that damaged the properties of adjoining landowners, who made a claim against L. S then assigned to L by deed of assignment its rights and benefits under the report and the right to sue T, and L brought a part 20 claim against T for damages for breach of contract.



A preliminary issue arose as to whether L was able, by virtue of the assignment, to recover the loss it had allegedly suffered. The judge held that L, as assignee of the cause of action for breach of contract, would be entitled to recover substantial damages from T, even though S had not suffered substantial damage while it was entitled to the benefit of the contract with T and when the cause of action arose, and even though the landslip causing the damage occurred before the assignment to L.



T contended that the only losses L was entitled to claim by virtue of the assignment of the cause of action were the losses that S could itself have recovered from T at the time of the assignment and that, as the assignment of the cause of action took place after S had parted with the site to L and the substantial damage occurred before the assignment of the cause of action to L, S and therefore L had no right to claim and recover substantial damages for loss resulting from the landslip.



Held, L had the right to sue T for substantial damages for breach of contract in respect of the loss claimed to have been suffered by it as a consequence of the landslip. What had been assigned by S to L was a cause of action for breach of contract against T and the legal remedies for it. It was not an assignment of a 'loss'. The assignment included the remedy in damages for the cause of action. The remedy in damages for breach of contract was not, in principle, limited to the loss suffered as at the date of the accrual of the cause of action or as at any particular point of time thereafter.



The principle that an assignee could not recover more than the assignor did not assist on the facts of this case. The purpose of the principle was to protect the contract breaker or debtor from being prejudiced by the assignment in having, for example, to pay damages to the assignee that he would not have had to pay to the assignor had the assignment never taken place. The principle was not intended to enable the contract breaker or debtor to rely on the fact of an assignment in order to escape all legal liability for breach of contract.



In this case, the assignment did not prejudice T by exposing it to a claim for damages by L that S could not have brought against T. The assignment of the cause of action by S to L was a delayed consequence of the earlier sale of the land. If S had not sold the land to L, it would not have assigned the cause of action against T to L and it could have recovered substantial damages against T for the landslip Linden Gardens Ltd v Lenesta Sludge Disposals Ltd (1992) 57 BLR 57 applied.



Appeal dismissed.



David Friedman QC (instructed by Squire & Co) for the appellant; Christopher Thomas QC, Gaynor Chambers (instructed by Warners) for the respondent.





TORTS



Abuse of process - assault - battery - burden of proof - compensation - disclosure - misfeasance in public office - self-defence

(1) James Ashley (junior) (2) James Ashley (senior) v Chief Constable of Sussex: CA (Civ Div) (Sir Anthony Clarke MR, Lord Justice Auld, Lady Justice Arden): 27 July 2006



The appellants (X) appealed against part of an order ((2005) EWHC 415 (QB)) giving summary judgment for the respondent chief constable (S), dismissing claims for damages for assault, battery and misfeasance in public office. X were the immediate family of the victim (J), who had been fatally shot during an armed raid by the police. X brought the claims under the Fatal Accidents Act 1976 as dependants of J, and under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of J's estate.



The police officer who had shot J was acquitted of murder. S admitted liability for false imprisonment and negligence in relation to the planning and execution of the armed raid, and agreed to pay compensatory damages accordingly. However, S denied misfeasance in public office in relation to the conduct of the police officers after the shooting. S also denied assault and battery, and relied on self-defence, but accepted that J had been shot under the mistaken belief that there was an imminent risk of attack.



X maintained that the police had deliberately released incorrect information to the press and public, obstructed an independent investigation, failed to involve J's family and fabricated evidence in circumstances in which they knew that what they were doing was unlawful or in which they were reckless as to whether it was lawful. The judge held that X had failed to discharge the burden of negativing self-defence, and that there was no sufficient evidence to support X's claim for misfeasance in public office.



S submitted that a defendant had to ensure that there was sufficient evidence to give rise to an issue of self-defence, and then the claimant had the burden to disprove the defence; the necessity to act in self-defence was to be judged on the basis of the actual state of mind of the officer who had shot J, whether reasonable or unreasonable; a trial of the allegations of assault and battery would be an abuse of process and the public interest did not justify a trial; and the allegations of misfeasance in public office were not specific enough and they only supported a case in negligence.



Held (Lord Justice Auld dissenting on the issue of battery), in criminal proceedings, the burden of negativing self-defence was on the prosecution. By contrast, in civil proceedings, the burden was on the defendant to establish self-defence. (Dumbell v Roberts (1944) 1 All ER 326, Dallison v Caffery (1965) 1 QB 348, (1964) 3 WLR 385 and Bici v Ministry of Defence (2004) EWHC 786 (QB), (2004) The Times, 11 June, considered. A defendant had a defence of self-defence to a claim for damages for assault and battery if he showed that he mistakenly but reasonably and honestly thought that it was necessary to defend himself against attack or an imminent risk of attack, and that the force he used was reasonable, Bici considered, and Cresswell v Sirl (1948) 1 KB 241, (1947) 2 All ER 730 and Cope v Sharpe (No2) (1912) 1 KB 496 distinguished on the facts. In judging whether the action taken in self-defence was reasonable, the court had to have regard to all the circumstances of the case, including the fact that the action may have had to be taken in the heat of the moment.



As the judge had erred in her decision on burden of proof, it was for this court to determine the issue of summary judgment. On the facts, S was not entitled to summary judgment on the assault and battery claims. A short trial of the allegations of assault and battery could not properly be held to be an abuse of process simply because of the acquittal of the officer who had shot J, since at the criminal trial both the standard and burden of proof and the ingredients of the alleged offence were different from the standard and burden of proof and the ingredients of the tort of battery and assault. Moreover, there was public interest in allowing the battery and assault claims to proceed, notwithstanding the fact that S had accepted liability for negligence.



On the facts, the judge had been wrong to hold that S was entitled to summary judgment in respect of the claim for damages for misfeasance in public office in respect of post-shooting events. However, the judge was entitled, in the exercise of her discretion, to direct that the issue of compensatory damages be determined before the issue of liability because, unless X showed that they were entitled to compensatory damages or had suffered a relevant injury in relation to post-shooting events, it would not be proportionate to permit X to proceed to a trial on the remaining issues of misfeasance.



The judge had erred in principle in holding that reports relating to the shooting were irrelevant. The public interest in disclosure of the reports outweighed the public interest in continued confidentiality and the reports should be disclosed, subject to some redaction of irrelevant information and to further argument as to when they should be disclosed.



Appeal allowed.



Keir Starmer QC, Richard Hermer (instructed by Deighton Guedalla) for the appellants; Edward Faulks QC, Paul Stagg (instructed by Weightmans) for the respondent.





ADMINISTRATIVE



Illegality - judicial review - military intervention - public inquiries - lawfulness of invasion of iraq

R (on the application of Gentle & ors) v (1) Prime Minister (2) Secretary of State for Defence (3) Attorney-General: CA (Civ Div) (Sir Anthony Clarke MR, Sir Igor Judge (President QB), Lord Justice Dyson): 26 July 2006



The applicants (G) applied for permission to appeal against an order refusing permission to claim judicial review of the government's refusal to hold an independent inquiry into the circumstances that led to the invasion of Iraq.



G were close relatives of four members of the British armed forces killed during the war in Iraq. G sought to bring a claim for judicial review because they considered that there was a serious question whether the invasion was illegal, which they claimed was a question of international law, and that it was in the public interest that it should be fully considered by an independent inquiry. G argued that the UK had an implied obligation to hold an independent inquiry under article 2 of the European Convention on Human Rights, and that the purpose of the proposed investigation was to ensure that the full facts were brought to light, to expose culpable and discreditable conduct, and to save the lives of others in future.



Held, it was arguable that if an inquiry was otherwise appropriate it would have a legitimate purpose, R (on the application ofAmin) v Secretary of State for the Home Department (2003) UKHL 51, (2004) 1 AC 653 considered. On the basis of further information available to the Court of Appeal, it was at least arguable that the question whether the invasion was lawful as a matter of international law was worthy of investigation. It was not necessary for G to show bad faith, merely that there was evidence to suggest that the circumstances leading up to the invasion remained unclear and deserved investigation, as did the lawfulness of the invasion and the question whether the unlawfulness of the invasion was causative of the deaths. The case raised questions of considerable general importance that should be decided after full argument.



Permission to appeal was granted under rule 52.3(6) of the Civil Procedure Rules on the basis that because of the importance of the issues and the uncertainty of the present position, there was a compelling reason why an appeal should be heard. For the same reasons, permission to apply for judicial review was granted to be heard by the same constitution of the Court of Appeal.



Application granted.



Rabinder Singh QC, Richard Hermer (instructed by Public Interest Lawyers) for the appellants; Philip Sales, Jemima Stratford (instructed by the Treasury Solicitor) for the respondents.





FAMILY



Children's welfare - parents - relocation - same-sex partners - shared residence orders

Re G (children): HL (Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond): 26 July 2006



The appellant mother (G) appealed against a decision ((2006) EWCA Civ 372) granting her respondent former partner (W) primary care of their two children.



G and W had cohabited in a same-sex relationship, during which G conceived two children following anonymous donor insemination. Following their separation, the children stayed with G, but had regular contact with W and remained happy with both parents. G, in breach of an order imposed by the court, and without W's knowledge, relocated with the children from the midlands to Cornwall. W issued applications to locate the children and made an application for a shared residence order and to be the primary carer.



The judge granted the order and reversed the times allocated to each home. Her reasoning was that she had no confidence that if the children remained in Cornwall, G would promote the children's essential close relationship with W. The Court of Appeal upheld that decision.



G submitted that the courts below were wrong to attach no significance to the fact that G was the natural mother of the children. Moreover, G argued that the High Court judge had been so distracted by her disapproval of G's behaviour, that she failed to give full consideration to the evidence relating to the children's welfare. G contended that the reversal in the parties' positions in response to G's removal of the children to Cornwall did not refer to the important fact that G was both their biological and psychological parent and there was no good reason to change the children's primary home.



Held, the courts below had allowed the unusual context of the dispute to distract them from principles that were of universal application. The key consideration, reinforced by statute, in relation to any parental dispute was that the welfare of the children was paramount. Moreover, that principle was equipped to encompass the wishes of the parents, J v C (1970) AC 668 followed. However, the fact of parentage was still important. G's status as the natural mother of the children was a significant factor to take into account, yet it did not feature in the Court of Appeal's judgment.



The evidence showed that the children were happy and doing very well in G's home and that should not have been changed without good reason. Although G had deliberately disobeyed the court's order, since she had been located contact arrangements between the children and W had been reinstated and G continued to abide by the order. Had the situation been the usual case of a similar dispute between mother and father, it was difficult to believe that the court would have contemplated changing the children's primary home while contact was continuing in accordance with the court's order, Re K (a minor) (Ward: Care and Control) (1990) 1 WLR 431; Re H (a minor) (Custody: Interim Care and Control) (1991) 2 FLR 109; and In Re W (a minor) (Residence Order) (1993) The Times, 16 April, considered.



Appeal allowed.



Peter Jackson QC (instructed by Family Law in Partnership as agents for Ashtons (Truro)) for the appellants; Stephen Cobb QC, Lorna Meyer (instructed by Bindman & Partners) for the respondents.





CRIMINAL PROCEDURE



Bail - custody time limits - prisoners' rights

O v Harrow Crown Court: In Re O (application for a writ of habeas corpus): HL (Lord Nicholls of Birkenhead, Lord Hutton, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood): 26 July 2006



The appellant (O) appealed against a decision ((2003) EWHC 868 (Admin), (2003) 1 WLR 2756) that section 25 of the Criminal Justice and Public Order Act 1994 did not violate article 5 of the European Convention on Human Rights.



O had been detained pending trial on charges of rape, false imprisonment and indecent assault. A prior conviction for rape brought him within the scope of section 25, which provided that bail would only be granted to offenders in his category if the court was satisfied that there were exceptional circumstances justifying it. He remained in custody for a period of 22 months until his trial was permanently stayed. He was refused bail both before and after the expiry of the 182-day custody time limit.



The main issue before the court was the impact of section 25 in cases where the custody time limit had expired. O argued that once, as in this case, the court had refused to extend a custody time limit because of the prosecution's failure to act 'with all due diligence and expedition' within the meaning of section 22(3)(b) of the Prosecution of Offences Act 1985, the court could not refuse bail without thereby violating article 5. The Director of Public Prosecutions (DPP) and the Secretary of State for the Home Department argued that decisions of the European Court of Human Rights showed that there was no automatic equation between a lack of due diligence such as might prompt a refusal to extend the custody time limit and a breach of the reasonable time guarantee in article 5(3).



Held, the submission of the DPP and the Secretary of State was correct. By the very nature of things, the Strasbourg court would be looking at the case in a different way from the domestic court; in particular, from a longer and wider perspective. The Strasbourg court would have the whole picture before it and would take an overall view as to whether the reasonable time guarantee had been exceeded, Contrada v Italy (27143/95) (1998) HRCD 795 and Grisez v Belgium (35776/97) (2003) 36 EHRR 48 considered. The domestic court, by contrast, was inevitably having to decide a much narrower question from within a shorter timeframe. And it was doing so within the strict confines of section 22(3) which, despite the marked similarity between its language and that used in Strasbourg, in fact imposed a more rigid formula for the extension of custody time limits than Strasbourg did with regard to the reasonable time guarantee under article 5(3).



There were not likely to be many cases where, as in this case, bail would be refused notwithstanding the court's refusal to extend the time limit; however, there was no necessary inconsistency between the two, and article 5(3) was not necessarily thereby breached. Nor was there any other reason for thinking that O had been wrongly refused bail; on the contrary, the case for his continued detention in custody appeared to have been a strong one. In summary, section 25 should be construed and applied essentially as a guide to the proper operation of the Bail Act 1976 in those cases to which it applied. Additionally, it operated in those cases to disapply the ordinary requirement under regulation 6(6) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 that bail should be granted automatically to anyone whose custody time limit had expired. Thus applied, it was compatible with article 5(3).



Mr Justice Hooper had been correct to hold in the court below that section 25 placed the burden on the detained person to prove that he should be released but that the section could be read down so as to impose a purely evidential burden on the accused.



Appeal dismissed.



James Turner QC, Jamas Hodivala (instructed by Clarke Kiernan) for the appellant; Ben Emmerson QC, Clive Lewis (instructed by the Treasury Solicitor) for the respondent; Ben Emmerson QC, Martin Bowyer (instructed by DPP) for the intervener Crown Prosecution Service; Ben Emmerson QC, Clive Lewis (instructed by the Secretary of State for the Home Department) for the intervener Treasury Solicitor.