DISCRIMINATION

Disability - employment tribunals - reasons - substantial disadvantage - arrangements - no link between dismissal and disability - duty to redeploy employee

Marie Difolco v ntl Group Ltd: CA (Civ Div) (Lords Justice Waller, Laws, Leveson): 12 October 2006



Employer (N) appealed against the decision of the Employment Appeals Tribunal (EAT) upholding an employment tribunal's conclusion that N had failed to make a reasonable adjustment in respect of the respondent employee (D), contrary to section 6(1) of the Disability Discrimination Act 1995.


Following an accident at work, D had suffered partial paralysis and was a disabled person within the meaning of the Act. She returned to work on a part-time basis. D was subsequently selected for redundancy, and was informed by N of alternative employment, albeit a full-time post with a competitive selection procedure.


D was informed that, if successful, N might consider employing her in that role on a part-time basis. D chose not to apply for the post, and instead issued a number of complaints against N before the employment tribunal.


The tribunal found, among other things, that it would have been a reasonable adjustment to ascertain whether the alternative role could have been part time and, if so, to have offered it to D without the need for a competitive selection procedure. The EAT, while finding the tribunal's conclusions in all other areas to be wholly inadequate, upheld that conclusion.


N contended, among other things, that the tribunal had erred in law in finding that D had suffered a 'substantial disadvantage' within the meaning of section 6(1), and in its examination of the 'arrangements' that N had made in relation to D.


Held, a claim under section 6(1) required it to be shown that an employer's arrangements placed an employee at a substantial disadvantage, and an employer was not obliged to make any adjustment to a role to remedy 'substantial disadvantage' before a potential candidate applied for a job. The tribunal was obliged to refer to or identify 'arrangements' where they were not obvious.


In this case, it was difficult to ascertain what the tribunal had considered to be the relevant arrangements. Where there was no link between D's dismissal by way of redundancy and her disability, N had simply not owed D a duty to redeploy her without competitive selection.


In those circumstances, the EAT's decision could not stand and the matter would be remitted to a fresh tribunal for reconsideration (Archibald v Fife Council [2004] UKHL 32, [2004] 4 All ER 303 considered).


Appeal allowed.


Jonathan Cohen (instructed by the in-house solicitor) for the appellant; Ivan Hare Instructed by Bishop & Sewell) for the respondent.





INTERNATIONAL


Administrative law - human rights - detention - diplomatic protection - discretion - Foreign & Commonwealth Office - foreign nationals - foreign policy - inhuman or degrading treatment or punishment - legitimate expectation - race discrimination - refugees - right to respect for private and family life - torture

R (on the application of Bisher al-Rawi & ors) v (1) Secretary of State for Foreign & Commonwealth Affairs (2) Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Brooke (V-P), Laws, Lady Justice Smith): 12 October 2006


The appellants (X), who were detainees held by the US authorities at Guantanamo Bay and relatives of those detainees, appealed against the refusal ([2006] EWHC 972, [2006] HRLR 30) of their application for judicial review of the respondent secretary of state's refusal to make a formal request for their return to the UK.


The detainees were not British nationals, but were previously resident in the UK and had been granted indefinite leave to remain. The secretary of state declined to make a formal request for their return on the basis that it would probably be seen by the US as unjustified special pleading, and would be likely to be both ineffective and counter-productive.


The court below held that the secretary of state could not be compelled to make a formal request for the return of the detainees since they did not have the same claim as British nationals to any international law right of the state to make representations to the US authorities on their behalf.


X submitted that: the secretary of state's refusal to make the same representations on the detainees' behalf as had been made in respect of British citizens constituted unlawful discrimination, contrary to the Race Relations Act 1976, and violated article 14 of the European Convention on Human Rights read with article 3 and/or article 8; the secretary of state's refusal to make a request for their return constituted a breach of legitimate expectation; the secretary of state's refusal to make the request breached the rights of the appellant family members under articles 3 and 8; the secretary of state's position on 'state-to-state' claims in international law, and the prime role of nationality, was mistaken; and the secretary of state's conclusion that representations would be ineffective and counter-productive was flawed by a failure to have regard to all material considerations.


Held, the detainees had been treated differently from British nationals not because of their nationality, but because they were not entitled to diplomatic protection, while British nationals were. That was a proper and legitimate basis of distinction for the purposes of the 1976 Act. Their circumstances were not the same as those of British nationals, so there was no violation of section 1(1)(a) of the 1976 Act read with section 19B(1) (R (on the application of European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 2 AC 1 distinguished). For the same reason, the appellant family members could not make a case of discrimination under article 14.


Since the secretary of state had not discriminated against the detainees, neither the detainees nor their families could complain that the secretary of state had failed to treat like cases alike. The only legitimate expectation the detainees had was that the secretary of state would consider a British national's request that representations be made on his behalf (R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, [2003] UKHRR 76 followed). There was no basis for accepting a like expectation enjoyed by non-British nationals. In any event, it was clear that the secretary of state had considered the detainees' requests.


The source of the family members' grievance was the actions of the US. The convention contained no requirement that a signatory state should take up the complaints of any individual within its territory in relation to acts of another sovereign state (Bertrand Russell Peace Foundation v UK (1978) 14 D&R 117 considered). The prohibition against torture had the status of jus cogens erga omnes, which meant that a state was empowered, but was not obliged, to intervene with another sovereign state to insist on respect for the prohibition of torture. However, that did not impose on states a duty in international law to take such action as would provide at least a real prospect of alleviating the suffering complained of (A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221 applied and Kaunda v South Africa CCT 23/04 considered).


The detainees could not rely on the International Law Commission's draft articles on diplomatic protection, which proposed that a state may exercise diplomatic protection in respect of refugees or stateless persons. The articles were not relevant, as they could not be treated as existing law. Furthermore, they did not impact on the secretary of state's primary factual position, which was that to make representations on behalf of the detainees would be ineffective and counter-productive.


X's submissions on the alleged failure to have regard to all material considerations fell foul of two principles. First, they invited the court to rule on the 'forbidden area' of the conduct of foreign relations (Abbasi followed). Second, it was for the decision-maker, not the court, to decide what was a relevant consideration to have in mind, especially in decisions touching the conduct of foreign relations.


The court's role in cases such as this, dealing with issues touching both the government's conduct of foreign relations and national security, was to ensure that the government strictly complied with all formal requirements and rationally considered the matters it had to confront. Given the subject matter, the law accorded to the executive an especially broad margin of discretion.


Appeal dismissed.


Rabinder Singh QC, Tim Otty, Raza Husain, Guglielmo Verdirame (instructed by Birnberg Peirce & Partners) for the appellants; Christopher Greenwood QC, Philip Sales, Ben Hooper (instructed by the Treasury Solicitor) for the respondents; Guy S Goodwin-Gill (instructed by Baker & McKenzie) for the intervener; the special advocate: Andrew Nicol QC (instructed by the Treasury Solicitor).





NEGLIGENCE


Contracts - torts &150; doctors - duty of care - medical advice - proximity - sporting organisations - sportspersons - surgeon giving negligent advice to football player - duty in contract or tort to football club - medical treatment

West Bromwich Albion Football Club Ltd v Medhat El-Safty: CA (Civ Div) (Lords Justice Mummery, Rix, Mr Justice Peter Smith): 11 October 2006


The football club (W) appealed against the determination ([2005] EWHC 2866 (QB)) that the respondent orthopaedic surgeon (E) owed no duty to W in contract or in tort in respect of the treatment of one of W's players (P).


W was covered by medical insurance for its players' medical treatment. Players, including P, were not parties to the cover, but were described as 'members' of the insurance scheme. E was a service provider and his fees in respect of the treatment were settled by the insurance company.


Neither W nor the insurance company paid fees to E for him to give advice or treatment to W. W had agreed with P that any medical treatment would be without expense to him. Following a knee injury suffered by P, W's in-house physiotherapist had arranged an appointment for P to see E, and had accompanied him to that appointment.


E made a diagnosis and recommended that P undergo reconstructive surgery, which he did. The advice was negligent, and P never fully recovered and had to retire from professional football.


W sought damages from E for the financial losses it allegedly suffered in consequence of his negligence. W submitted that: an express contract was made when the in-house physiotherapist arranged an appointment for P to see E, and it was implicit in that contract that W was the contracting party that would be responsible for E's fees and in return would be owed the duties of care that would go along with E's obligation to render his advice to W; even if E's contract was with P, the facts were that W relied on his advice and E knew or should have known that, and should have appreciated the important financial interests that were involved in the adequacy of that advice, in a situation so akin to a contract, so it was just and equitable for him to be responsible to W for the financial consequences of his negligence.


Held, the circumstances pointed to a contract for medical treatment between E and P, rather than between E and W. There was a consensual relationship between them - E treated P, who consented to the treatment. It would be an implied term of the treatment that E would be paid for it, but that did not mean that P would bear the ultimate burden of liability for payment. The treatment would normally be on the basis that P would be covered by the insurance company, to whom E should look for payment.


The sending of the invoices to W and its conduct in securing payment of the fees from the insurance company was evidence that it had agreed to secure payment of fees to E under the insurance policy, but it was not evidence of a contract with W for E to provide medical treatment for P. The evidence was more consistent with the inference of a contract to secure payment of the fees for medical treatment. W would foot the bill for P's medical treatment. E might be entitled to claim the unpaid fees from W, but it did not follow that W would be entitled to claim from him damages for breach of contract in the form of economic loss resulting from the diminution in the value of P as a transferable asset of W. E had no express contract with W, nor would any such contract be implied as a matter of necessity (Baird Textile Holdings Ltd v Marks & Spencer Plc [2001] EWCA Civ 274, [2002] 1 All ER (Comm) 737 considered).


E owed no duty of care in tort to W in respect of foreseeable economic loss. There was no assumption of responsibility by E to W for financial loss that W might suffer in relation to the diminution in P's value resulting from medical treatment.


There was nothing in the facts of their dealings with one another to indicate that E would be, or would ever agree to be, responsible to W for its economic loss. He was paid under the insurance scheme to treat P, not to treat W or to advise it about P or its financial affairs.


Moreover, the question of conflict of interest emphasised that E's exclusive concern was, or should have been, his patient's well-being, not W's financial circumstances. Although it was reasonably foreseeable by E that W would suffer financial loss if his medical treatment was negligent, and there was a proximity of a sort between him and W, it was not such that it would be fair, just, or reasonable to impose such a duty on E (Caparo Industries Plc v Dickman [1990] BC 164 considered).


E was brought in by W to provide medical treatment for P. He was not brought into sufficient proximity to W itself by the fact that W was P's employer, or arranged insurance cover for his private medical care, or would suffer reasonably foreseeable financial loss consequent on the negligent medical treatment of P.


Appeal dismissed.


Jeremy Stuart Smith QC (instructed by Nexus) for the appellant; for the respondent: Stephen Miller QC, Mary O'Rourke (instructed by the Medical Protection Society) for the respondent.





INSOLVENCY


Insurance &150; administration - asbestos - claims handling - expenditure - priorities - reinsurance contracts - reimbursement of expenses incurred by insurers in handling claims - administration expenses

Freakley & ors v Centre Reinsurance International Co & ors: HL (Lords Hoffmann, Hope of Craighead, Phillips of Worth Matravers, Walker of Gestingthorpe, Brown of Eaton-under-Heywood): 11 October 2006


The appellant administrators (S) of a company (T) appealed against the decision ([2005] EWCA Civ 115) that liabilities for claims-handling expenses incurred by the insurers (C) acting under the rights conferred by an asbestos liability policy, following the occurrence of an insolvency event, were properly to be treated as liabilities incurred by S in carrying out their functions for the purposes of section 19(5) of the Insolvency Act 1986.


T had been faced with a large number of tort claims arising out of the use of asbestos in its products. Under the policy, T was entitled to be indemnified against its ultimate net loss, which included established liabilities under asbestos claims and the costs of defending and handling such claims in excess of a retained limit.


It was a condition of the policy that after the occurrence of an insolvency event or the reaching of the retained limit, C should have the exclusive right to handle and defend claims and was entitled to reimbursement of such expenses. S were appointed, as it appeared unlikely that T would be able to pay its debts.


The High Court held that the payments to claims handlers by C had not been pursuant to or in discharge of any contract entered into by S. C argued that its claim to reimbursement of claims-handling expenses fell within section 19(5) of the Act, under which outside creditors' debts had a super-priority over the administrators' remuneration and expenses.


Held, the purpose of administration under the Act was simply to impose a moratorium to allow time to find a way of saving the business or realising it to better advantage than in a liquidation. It was not intended to alter substantive rights under contracts into which T had entered or priorities more than was necessary to enable that objective to be achieved.


The provisions of section 19(4) and 19(5) of the Act entrusted to the administrator, subject to court supervision, the power to decide what expenditure was necessary for the purposes of the administration and should therefore receive priority. There was no reason to extend that priority to expenditure that neither the administrator nor the court had specifically approved.


It was true that, once an administrator had been appointed, only he could act or confer authority to act on behalf of the company. But that did not mean that anyone with authority to act on behalf of the company was deemed to have derived his authority from the administrator. The company might, before the appointment of the administrator, have conferred on someone an authority to contract on its behalf, which, in law or in practice, the administrator could revoke. This was such a case.


The contracts were made on behalf of T, but not on behalf of S. There was no reason why such obligations, which might or might not be in the interests of the administration, should be given priority over T's other debts. C wished to handle the claims to ensure that the ultimate net loss, if it exceeded the retained limit, would do so by as little as possible. If the ultimate net loss did exceed the retained limit, C would recover any current expenditure by set-off against its liability to indemnify T.


But C wished to handle the claims and to bring itself within section 19(5) to ensure that it did not have to wait to exercise a right of set-off or take the risk that the claims would not exceed the retained limit and no set-off would be possible. These were sensible business objectives for C, but they had little to do with the purposes of the administration. In the circumstances, it would be unusual for the court, in the exercise of its supervisory powers, to direct S to authorise or ratify particular claims-handling expenditure by C, with the result that its right to reimbursement would have priority under section 19(5) of the Act (AIB Capital Markets plc v Atlantic Computer Systems plc [1992] Ch 505 considered).


Appeal allowed.


Gabriel Moss QC, David Edwards (instructed by Denton Wilde Sapte) for the appellants; Geoffrey Vos QC, Christopher Butcher QC, David Lord (instructed by Kendall Freeman) for the respondents.





IMMIGRATION


Asylum seekers - credibility - medical evidence - scarring - torture - well-founded fear of persecution in Somalia

SA (Somalia) v Secretary of State for the Home Department: CA (Civ Div) (Sir Mark Potter (President Fam), Lords Justice Brooke (V-P), Moore-Bick): 10 October 2006


The appellant (S) appealed against the refusal of his asylum claim and the secretary of state's decision to remove him from the UK.


S was a Somali national. His case was that he was a member of the minority Bendabow sub-clan of the Benadir clan in Somalia and that he had suffered persecution as a result.


Before the adjudicator, he produced a medical report in support of his claim to have been tortured. The adjudicator dismissed S's claim on the ground of credibility.


The Asylum and Immigration Tribunal dismissed S's appeal on the ground that the medical evidence did not corroborate his case. S submitted that both the adjudicator and tribunal had failed to deal properly with the medical report by reaching conclusions as to credibility without reference to that evidence and then finding that that evidence did not displace these conclusions, rather than by dealing with the evidence as an integral part of the findings on credibility.


Held, in describing S's symptoms in this case, the doctor's report amounted to no more than a record of S's history as recounted to the doctor and S's own explanations for the injuries found on examination. The report expressed no separate view or opinion as to whether the explanation given for the wounds found was objectively supportive of or consistent with the history given, nor as to other possible causes.


The doctor's report showed that the account given by S to the doctor was consistent with that given to the adjudicator, without adding any additional confirmation or expert indication on the doctor's part as to the inherent likelihood that such explanations were true. The report was inadequate for the task that it was tendered to perform, namely to corroborate or lend weight to the account of S by a clear statement as to the consistency of the old scars found with the history given.


The expert question of consistency should not be left to the adjudicator as a matter of inference or interpretation. If the report had included an express opinion as to the causation of the injuries, it would have been impermissible to determine the central question of credibility without having regard to that opinion (Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 considered).


The adjudicator and the tribunal had been right to conclude that the explanation for the injuries came from S and not from the doctor, so that the report was not medical evidence of the kind considered in Mibanga. Therefore there was no error of law.


Appeal dismissed.


Sonali Naik (instructed by Dare Emmanuel) for the appellant; Charles Bourne (instructed by the Treasury Solicitor) for the respondent.





DEFAMATION


Companies - freedom of expression - libel - newspapers - public interest - qualified privilege - special damage - requirement for company to allege or prove actual damage - scope and application of Reynolds privilege

(1) Mohammed Abdul Latif Jameel (2) Abdul Latif Jameel Co Ltd v Wall Street Journal Europe Sprl: HL (Lords Bingham of Cornhill, Hoffmann, Hope of Craighead, Scott of Foscote, Baroness Hale of Richmond): 11 October 2006


The appellant newspaper publisher (W) appealed against a decision ([2005] EWCA Civ 74, [2005] QB 904) upholding the trial judge's rejection of its defence of qualified privilege in a libel action brought against it by the respondents (J).


J was a Saudi Arabian trading company and its general manager. They complained about a newspaper article that stated the Saudi Arabian Monetary Authority was, at the request of US law enforcement agencies, monitoring bank accounts associated with some of the country's most prominent businessmen in an attempt to prevent them from being used for the channelling of funds to terrorist organisations. The article named J along with other companies and individuals.


The jury held that the article was defamatory of J. The issues for determination were the entitlement of a company to sue and recover damages in a defamation claim without pleading or proving special damage; and the scope and application of the type of qualified privilege described in the Reynolds v Times Newspapers Ltd [2001] 2 AC 127 case.


Held, a company that had a trading reputation in England and Wales was entitled to pursue a remedy in a defamation action without being required to allege or prove that the publication complained of had caused it actual damage. A trading corporation was entitled to sue in respect of defamatory matters that could be seen as having a tendency to damage it in the way of its business (South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133 and Derbyshire CC v Times Newspapers Ltd (1993) 143 NLJ 28 applied). There was nothing in article 10 of the European Convention on Human Rights that required a different conclusion (Steel v United Kingdom [2005] EMLR 15 considered). It would not be desirable to treat trading companies differently from any other type of claimant in a defamation case.


However, where a trading company had suffered no actual financial loss as a result of a defamatory statement, any damages awarded should be kept strictly within modest bounds.


The Court of Appeal had denied W the defence of Reynolds privilege on a very narrow ground, namely that it had failed to delay publication of the article until J had had the opportunity to comment on its content. That ruling subverted the liberalising intention of the decision in Reynolds.


The first question in Reynolds was whether the subject matter of the article was a matter of public interest. The subject matter of the article in this case clearly satisfied that test, as it was of high importance and of public interest.


Secondly, it had to be shown that the steps taken to gather and publish the information were responsible and fair. The standard of conduct required by a newspaper must be applied in a practical and flexible manner (Bonnick v Morris [2002] UKPC 31, [2002] 3 WLR 820 and Reynolds applied). W had clearly satisfied the requirements of responsible journalism. There was no basis for rejecting W's Reynolds defence.


Appeal allowed.


Geoffrey Robertson QC, Rupert Elliott, Guy Vassall-Adams (instructed by Finers Stephens Innocent) for the appellant; James Price QC, Jacob Dean (instructed by Carter-Ruck and Partners) for the respondents.