CIVIL PROCEDURE
Addition of parties - amendments - beneficial interests - limitation periods - mistake - substitution of parties
Roger James Weston v (1) John Gribben (2) Foreign & Commonwealth Office: CA (Civ Div) (Lords Justice Sedley, Lloyd, Hallett): 2 November 2006
W appealed against a decision that limited the basis on which another party (G) could be added to its claim against the second respondent Foreign and Commonwealth Office (F), which cross-appealed against a decision to allow G to be joined as an additional claimant in the proceedings.
W was the sole administrator of G, and G was the legal owner of a property in Spain. W had alleged that, as part of a fraudulent scheme to remove him from office and sell the property, certificates had been prepared and were purportedly signed by W as confirmation that he had ceased to hold office as administrator for G.
That purported signature was notarised by the first respondent (N) in London, even though he was only authorised to act in Scotland and that, in turn, was confirmed by the issue of an apostille by F. As a result of the authorisation of those documents, the property was sold and was out of W's control.
W brought proceedings against N and F for damages for the loss of those property interests and, specifically against F, he alleged that its misfeasance in public office in not ensuring that his signature was authentic had caused his loss.
W applied, outside the limitation period, to amend the particulars to add G as a second claimant pursuant to rule 19.5(3)(a) and (b) of the Civil Procedure Rules, so as to allow G to sue for recovery of the whole loss of the property, and W for two-thirds of the loss, on the footing that he had had a two-thirds direct beneficial interest in the property.
The judge had held that the only duty that F could have owed in respect of the property interests was towards the legal owner of the property, namely G. He allowed W to join G as an additional claimant, but only to the extent of enabling him to maintain a claim based on an alleged beneficial interest owned by him, under a trust of which G was alleged to have been a trustee.
W submitted that his decision to name himself as the claimant rather than G was made on a mistaken basis that fell within rule 19.5(3)(a). He maintained that the mistake was for the claim to be brought by someone not entitled to assert such a claim.
However, F argued that there was no mistake as to the identity of the claimant. Rather, it maintained that it was a new and different claim, albeit based on the same causes of action, and was not simply a case of substituting the parties.
Held, there was no justification for joining G as an additional claimant pursuant to rule 19.5(3)(b). The judge's order was designed to enable W to assert a claim based on the loss of his alleged two-thirds beneficial interest in the property, but that claim was based on a duty of care which the judge had held did not exist. There was no point in W proving that he had a beneficial interest when that interest was irrelevant to the duty of care owed by F. Accordingly, F's cross-appeal was allowed.
The application of rule 19.5(3) had to be viewed in the statutory context of section 35(6) of the Limitation Act 1980 and of the overriding objective, and in the factual context of the nature of the claim made, the amendments sought to be made, and the evidence as to the nature and circumstances of the mistake that was said to be made in respect of the original claim.
The amendment to allow G to sue for the loss of the whole was a new claim brought outside the limitation period and could only be justified by rule 19.5(3)(a). A convenient test was to ask whether the identity of the claimant could be changed without significantly changing the claim.
On the facts, the amendments that would have had to be made to the particulars of claim were too substantial. The basis for the allegation of duty of care owed by F and misfeasance was different and it was therefore by no means a simple amendment process (Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd [2005] EWCA Civ 134, [2005] 1 WLR 2557 considered). Accordingly, the substitution was not permitted by rule 19.5(3)(a) and would have gone outside the scope permitted by section 35(6)(a) of the 1980 Act in that it was not a substitution of G as one party for an existing party in any claim made in the original action, but in respect of a materially different action.
(Obiter) There was no mistake within the scope of rule 19.5(3)(a). Those responsible for formulating the claim were under no mistake as to the relevant facts concerning the identity, position and status of G, or the position of W as its administrator. If it had been W's intention to put forward a claim by G, but in his own name on its behalf, that would have been reflected in the particulars.
Appeal dismissed, cross-appeal allowed.
Mark Warwick (instructed by Cartwright Cunningham Haselgrove & Co) for the appellant; Robert Jay QC, Adam Robb (instructed by the Treasury Solicitor) for the respondent.
SENTENCING
Conspiracy - double jeopardy - guilty pleas - sentence length - supply of drugs - undue leniency - level of culpability - distinction between roles of offenders - cocaine - drug dealers
Attorney-General's references (Nos.66 to 71 of 2006) sub nom R v C & 5 ors; R v R: CA (Crim Div) (Lord Justice Hughes, Mr Justice Henriques, Mr Justice Field): 31 October 2006
The Attorney-General referred as unduly lenient the sentences of six defendants (C, D, R, E, B and N) following their pleas of guilty to conspiracy to supply controlled drugs, and one appellant (X) appealed against sentence following his plea of guilty to a single substantive offence of supplying a controlled drug.
The defendants had been arrested as part of an undercover police operation targeting cocaine dealers. By the time it came to sentencing, the defendants had made admissions as to the specific transactions they had been involved with and were sentenced on that basis. C, D, R and X were each sentenced to six-and-a-half years' imprisonment.
E, B and N had acted as delivery men and were sentenced to three years', three-and-a-half years' and two-and-a-half years' imprisonment respectively. The Attorney-General submitted that the sentences failed to reflect the seriousness of the offences, were insufficient as a deterrent, and failed to reflect the amount of cocaine involved and its relative purity values.
It was argued that there should be a distinction made between those defendants who played the role of supplier and those of delivery men. However, it was argued that in acting as delivery drivers for the amounts of cocaine involved and the length of the periods of offending, E, B and N should be regarded as higher-level offenders than ordinary street dealers.
X submitted that the sentence imposed was excessive and that he should be distinguished from the other defendants as he had pleaded guilty to a single substantive offence.
Held, the sentencing of defendants of any kind was not a purely arithmetical process despite the well-known modifications in R v Aranguren (1994) 99 Cr App R 347 (Aranguren considered).
The judge had not had the advantage of any guidance as to the purity levels of the cocaine involved in the various transactions carried out by the defendants, and accordingly could only sentence them on that basis. Where there were several transactions, it was not appropriate to add those transactions up and reach a total as though it were a single overall transaction, as it was not always true that the same amount of cocaine supplied over a number of transactions would be more serious than a single large transaction. It was the scale and nature of the defendants' operation that mattered, including the size of the individual transactions, their frequency, and the total amount of cocaine handled.
A conspiracy charge was usually more serious than an individual offence, particularly where defendants operated as a team and certain individuals were responsible for the actions of other members within that team (R v Allsopp [2005] EWCA Crim 703 considered). In this case it was clear that C, D, R and X had each used the remaining defendants to effect delivery of the cocaine and therefore carried the responsibility for their doing so as an aggravating feature.
C had been sentenced on the basis of his involvement in 17 transactions over six months and his use of two delivery men - E and B. Therefore, the judge's starting point of ten years had there been a contested trial was too low and ought to have been between 12 and 14 years. Credit for his prompt guilty plea meant that a sentence of nine years' imprisonment would have been appropriate. However, in consideration of the double jeopardy rule, the sentence was quashed and a sentence of seven-and-half-years' imprisonment was substituted.
D was sentenced on the basis that he was involved in three transactions of 100% purity cocaine over five months and used one delivery man. He had supplied the drug in a large way and as a result a starting point of between ten and 12 years would have been appropriate. However, his sentence would not be interfered with as, although it was at the lower end of the bracket, he received full credit for his early guilty plea and the sentence was not unduly lenient.
R was dealt with on the basis that he was involved in two transactions of sizeable quantity and used N as a delivery man. There was limited scope for personal mitigation where offences involved the use or supply of class A drugs. However, as with D, there were no grounds to interfere with the sentence imposed.
Had X stood alone for the single substantive offence he pleaded guilty to, it would have been difficult to find that the sentence imposed was excessive. However, it was clear that X could be distinguished from the other defendants as he was only involved in one transaction and there had been no further sign of involvement. A small adjustment was appropriate to reflect the distinction, and accordingly X's sentence was quashed and one of six years' imprisonment substituted.
In relation to E, B and N, the starting points of four-and-a-half years had been considerably lower than those conventionally adopted in cases involving low-level street dealers (R v Djahit (Turkesh) [1999] 2 Cr App R (S) 142 and R v Twisse (MichaeI James) [2001] 2 Cr App R (S) 9 considered).
E, B and N had delivered enough cocaine to keep many street dealers in business for some time and were above the level of mere street dealers. A starting point of seven-and-a-half years would have been appropriate. Accordingly, sentences of four-and-a-half years', four years' and three-and-a-half years' imprisonment were substituted for E, B and N respectively.
Judgment accordingly.
S Whitehouse, K Hyland for the Attorney-General; B Robson for the appellant; T Finch for the first defendant; R Woodcock for the second defendant; J Adams for the third defendant; A Rutter for the fourth defendant; B Mark for the fifth defendant; D Smith for the sixth defendant.
Aggravating features - domestic violence - rape - sentence length - undue leniency - culpability, harm and risk to society
Attorney-General's reference (No86 of 2006) sub nom R v J: CA (Crim Div) (Lord Justice Scott Baker, Mr Justice Holland, Judge Loraine-Smith): 1 November 2006
The Attorney-General referred to the court as unduly lenient a sentence of eight years' imprisonment imposed concurrently on the defendant (J) following his convictions for three counts of rape.
J and the victim (V) had been married for 18 years. The relationship was turbulent and violent as J had regularly forced V to perform degrading acts and had at one stage forced her to find work as a prostitute. The offences had only come to light following V's hospitalisation for injuries sustained during a beating by J. V disclosed to medical staff treating her that J had raped her on several occasions.
At trial, V and J's two teenage daughters gave evidence of the violent and abusive nature of their parents' marriage, although they had not been present during the course of any sexual abuse. The Attorney-General submitted that the sentence imposed failed to reflect the seriousness of the offending and the fact that the level of force used against V was above and beyond that necessary to carry out the offences; that there were several aggravating features present, namely the lengthy background of violence and the threat of violence against V, the acceptance of the rapes as being repetitive, the degradation suffered by V and the fact that the offences had had a profoundly traumatic effect on V and the family as a whole; that although the judge was correct to use a starting point of eight years, she should have elevated it to reflect the aggravating features, and the nature and time-scale of the offences meant that they were planned; and that the judge may have been misled into taking a more lenient view of J's conduct because the offences occurred in a domestic context.
Held, the judge was correct in her observation that J should only be sentenced on the basis of the convictions for the instant offences. However, the violent background of the marriage and events leading up to the sexual offences formed an important feature in setting out the offences and, as such, should be regarded as aggravating features.
The offences pre-dated the point at which the judge would have had to apply the dangerousness test under the Criminal Justice Act 2003, but she did conclude that J presented a significant risk of serious harm to future partners. The judge was correct to adopt a starting point of eight years as some of the aggravating features present accorded with the guidelines in R v Millberry [2002] EWCA Crim 2891, [2003] 1 WLR 546 (Millberry considered).
The judge should also have considered J's culpability, the perceived risk he posed to society, the level of harm inflicted on V, and the impact of the offences on her. However, the fact that the offences occurred in a domestic context did not justify a reduction in the length of sentence (Attorney-General's Reference Nos153 of 2004, 14 and 2 of 2005 [2005] EWCA Crim 954 considered).
Accordingly, all matters surrounding the nature of V's and J's relationship and the background to the offending had weight and indicated that a significantly longer sentence should have been imposed. The sentence was unduly lenient and a sentence of 12 years would have been appropriate, but in consideration of the double jeopardy rule, a sentence of ten years' imprisonment would be substituted.
Reference allowed.
S Bennett-Jenkins QC for the Attorney-General; J Traversi for the defendant.
FAMILY
Breach - contempt of court - non-molestation orders - sentence length - appropriate sentence for breaches of non-molestation order
G v G: CA (Civ Div) (Lords Justice Chadwick, Lloyd): 31 October 2006
G appealed against a sentence of 12 months' imprisonment for contempt of court.
Following the dissolution of G's marriage to the respondent (W), G was convicted of threatening to kill W. W obtained a non-molestation order to protect herself and the two children of the marriage.
On several occasions, G breached the order by making threats to W and her family, damaging property belonging to W's family, sending threatening messages, and encouraging his new wife to become involved in an altercation with W.
When sentencing, the judge treated the breaches as serious and imposed consecutive sentences of three months' imprisonment for each of the four serious breaches. G argued that the sentence of 12 months' imprisonment was excessive and the judge ought to have imposed a suspended sentence.
Held, in the circumstances of the case, the judge was entitled to impose an immediate custodial sentence, given all four breaches were different in quality.
The actions of G, given his age and experience of the world, were sufficiently serious to warrant an immediate custodial sentence. However, while the breaches of the order were serious and had occurred over an extended period of time, the overall sentence was excessive. Given that the maximum sentence that could be imposed was two years' imprisonment, a sentence of less than 12 months was appropriate. The sentence was quashed and one of eight months' imprisonment was substituted.
Appeal allowed.
Catherine Ellis (instructed by Rawal & Co) for the appellant; Martin Scott (instructed by Williams & Co) for the respondent.
NEGLIGENCE
Telecommunications - cable - compensation - damage - equipment - misconduct - road works - statutory duties - strict liability - compensation for damage to street apparatus - availability of statutory defence - street works - obligations in laying ducting - interference - notice obligations
Yorkshire Electricity Distribution Plc v Telewest Ltd: CA (Civ Div) (Lords Justice Buxton, Sedley, Dyson): 31 October 2006
A utility company (Y) appealed against the decision in five test cases (unreported, 15 December 2005, QBD) that it was liable to pay compensation under section 82 of the New Roads and Street Works Act 1991 to the respondent cable television company (T).
T had laid fibre-optic cables encased in plastic ducting beneath the streets, often in the same location as electricity cables laid by Y. In each of the test cases, Y had needed to repair its cables and to do so had caused damage to T's ducting without notice to T.
The judge found that, in each case, Y was liable for damage to T's ducting, either because it had been damaged by careless work during the initial opening of the street or because it had been damaged otherwise, thereby giving rise to strict liability for the damage under section 82 of the Act, and that it had not been established that T had been negligent in laying its cables so as to enable Y to rely on the defence in section 82(4).
Held, the judge's findings of fact could not be challenged on appeal and were therefore dispositive of the appeals.
Section 82 formed a complete code, excluding the operation of the common law, in respect of the execution of street works under the authority of statute or by licence. If Y caused or required damage to T's ducting in the course of street repairs, whoever it was that actually did the work that constituted the damage, Y had to pay for the making good of that damage unless it could establish negligence or misconduct by T under section 82(4).
The mere laying of ducting without giving notice under section 69 to Y would not count as such misconduct - the issue was where the ducting was and how it had been laid. If it obstructed access to Y's cables and had been laid outside the dimensions in the industry guidelines, it would be assumed that it was a case of negligence or misconduct, unless T could demonstrate circumstances preventing the application of the guidelines. When contemplating interference with T's ducting, whether or not in a case where a section 82(4) defence was or might be available, Y had so far as reasonably practicable to give T the opportunity envisaged by section 69 to monitor the execution of the works, and comply with any reasonable requirement that T imposed.
Where physical damage had been caused, either by Y or by T in reasonably meeting Y's requirements, Y was liable for it, unless it could establish a defence under section 82(4). Y was not liable for the cost of T attending on site if nothing that could be described as 'damage' had occurred.
Appeals dismissed.
Jeremy Cousins QC, N D P Mendoza (instructed by Ward Hadaway) for the appellant; Paul Darling QC, Jonathan Lee (instructed by Gisby Harrison) for the respondent.
ADMINISTRATIVE
Education - local government - investigations - jurisdiction - local education authorities - maladministration - schools - teachers
R (on the application of M) v Commissioner for Local Administration in England: QBD (Admin) (Mr Justice Collins):31 October 2006
M applied for judicial review of a decision by the defendant commissioner not to hear a complaint of maladministration made by M against a local authority.
M had made complaints to the school his son (S) attended, concerning the alleged conduct of a teacher towards S. M alleged that the teacher had ill-treated S by singling him out for adverse attention. The head teacher replied that following an investigation she could find no substance to the complaints made and that they were rejected.
Three years later, when S moved to a new school, it transpired that the alleged conduct had had a lasting adverse effect on S. M made a complaint to the school's governors, asserting that serious misconduct had occurred and that it required further attention.
The governors' response was to treat the complaint as a fresh complaint and refer the matter back to the head teacher, who essentially reaffirmed her earlier decision. M pursued the complaint with the local authority that ran the school and indicated that there were a number of fellow pupils of S who had witnessed the conduct and should be interviewed.
The local authority did not interview the pupils and rejected M's complaints. M complained to the commissioner under section 26 of the Local Government Act 1974 that the authority had investigated the matter in an inappropriate and inadequate way. The commissioner was originally of the opinion that he had no jurisdiction to investigate the matter, as the subject matter of the authority's investigation was outside of his jurisdiction by virtue of the operation of section 26(8) of the Act and paragraph 5(2)(b) of schedule 5 to the Act.
However, following correspondence from M, the commissioner determined that he did have jurisdiction but refused to exercise his discretion to conduct an investigation into the local authority's investigation, as any such investigation could not consider the matter at the school, and it was impossible to deal with the matter in any meaningful fashion if it was not possible to go into the matter at the school.
M contended that the commissioner had failed to properly consider the matters raised and that the complaint to the commissioner was not concerned with the result of the local authority's investigation but the manner in which it was carried out, and that it was not necessary for the commissioner to go into the result or background to the local authority's investigation to determine if that investigation was carried out in bad faith or represented maladministration.
Held, the commissioner did not have the jurisdiction to deal with M's complaint. Pursuant to section 26(8) of the Act, the commissioner could not conduct an investigation under the Act 'in respect of any action or matter' described in paragraph 5(2)(b) of schedule 5, namely, 'conduct... management or discipline in any school... maintained by the authority'.
The investigation by the local authority of what had happened in the school was clearly covered by those words as the local authority had taken an 'action' in investigating matters concerning 'conduct' in the school. The purpose behind schedule 5, paragraph 5(2) was to preclude the commissioner from looking into matters in local authority schools.
Moreover, it was not appropriate to grant relief even if the commissioner had had jurisdiction, as while the commissioner's communications to M were somewhat unsatisfactory he was entitled to conclude that it was impossible to deal with the matter in any meaningful fashion if it was not possible to go into the matter at the school.
Application refused.
Sam Grodzinski (instructed by Bindman & Partners) for the claimant; Brian Ash QC (instructed by Bevan Britten) for the defendant.
LANDLORD AND TENANT
Damages - diminution in value - disrepair - leases - measure of damages - repair covenants - cap on recovery of damages
James Ferguson Latimer & anor v (1) Michael Carney (2) Jacqueline Edwards (3) Gary Francis Robson: CA (Civ Div) (Lords Justice Arden, Wilson):27 October 2006
Landlords (L) appealed against a decision dismissing their action against their former tenants (T) for breach of a repair covenant in a lease between the parties. The lease was later assigned to the second respondent alone.
On termination of the lease, L had obtained a report from a surveyor as to the state of the premises, which estimated the cost of repairs. L repaired the roof of the premises before they relet, and carried out other repairs and improvements to meet the needs of the incoming tenant.
L sought damages against T for the alleged breaches of the repair covenant. The judge rejected L's claim because they had failed to prove the actual cost of the repairs, and had failed to produce evidence as to the diminution in value of the reversion for the purposes of the cap on recovery of damages imposed by section 18(1) of the Landlord and Tenant Act 1927.
The issues on appeal were whether the judge had been right to hold that L had failed to prove the damage to the reversion; whether L should be granted permission to amend their notice of appeal, so as to raise the argument that the judge should have inferred damage to the reversion from the difficulty in reletting the premises in their unrepaired state; whether the covenant to redecorate was a repair covenant to which the cap under section 18(1) applied; whether the judge had been correct to order that L alone should pay the costs of the third respondent in part 20 proceedings between the tenants, even though the second respondent's defence to the third respondent's claim for an indemnity had failed.
Held, expert evidence as to the diminution in value of the reversion was not necessary. Valuation was not the only means of proving the value of the reversion.
The judge had correctly found that the court could infer the amount by which the reversion had diminished in value from the evidence as to the estimated cost of the repairs, but the judge had erred in holding that there was no sufficient evidence on the facts of the instant case (Jones v Herxheimer [1950] 2 KB 106, [1950] 1 All ER 323 and Crewe Services & Investment Corp v Silk [1998] 2 EGLR 1 applied, and Firle Investments Ltd v Datapoint International Ltd (unreported) considered).
The fact that L had done more work than was necessary for repair did not mean that there had been no damage to the value of the reversion or that L had not suffered any loss as a result of T's breaches of covenant. The damage to the reversion should have been inferred from the estimated costs of repairing the roof and remedying the other breaches found by the judge. A discount of 60% should be applied to the latter to take into account the uncertainty as to the extent that the disrepair affected the value of the reversion.
The application to amend the notice of appeal was rejected. The argument that the judge should have inferred damage to the reversion from the period of time taken to relet the property raised factual issues not raised at trial.
The court should treat a failure to repair the decorative state of the premises as a breach of the covenant to repair for the purpose of section 18(1) even if that failure also constituted a breach of a covenant for periodic decoration in the same lease.
It had been plainly wrong for the judge to place on L the whole of the burden of the third respondent's costs of bringing the part 20 claim for an indemnity against the second respondent.
Appeal allowed. Michael Mulholland (instructed by Latimer Lee) for the appellant; Matthew Hall (instructed by Brabners Chaffe Street) for the second respondent; Nigel Bird (instructed by Hills) for the third respondent.
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