Local Government


Absence - codes of conduct - councillors - hearings unfitness to attend on medical grounds - exceptional circumstances for refusing adjournment

Janik (appellant) v Standards Board for England (respondent) & Adjudication Panel for England (interested party): QBD (Admin) (Mr Justice Stanley Burnton): 20 March 2007

The appellant former local authority councillor (J) appealed under section 79(15) of the Local Government Act 2000 against a decision of a case tribunal of the interested party adjudication panel, disqualifying him for one year from being a member of the local authority for breaching its code of conduct.



Following an investigation by an ethical standards officer appointed by the respondent standards board, allegations that J had breached the local authority's code of conduct and brought his office into disrepute had been referred to the interested party. Shortly before the hearing in front of a case tribunal was scheduled to commence, J asserted that he was medically unfit to attend the hearing and relied on a medical certificate from his doctor. The hearing was postponed until a later date.



The day before the adjourned hearing was expected to be heard, J wrote to the case tribunal to the effect that he was likely to be declared medically unfit to attend the hearing, owing to stress and hypertension caused by dealing with the case against him and the hearing itself. The tribunal replied requesting a medical report that fully addressed the nature and severity of J's condition. J subsequently sent the tribunal a medical certificate and a doctor's letter relating to his condition. J attended the hearing but withdrew when the tribunal refused to adjourn the hearing.



The tribunal held that while J had produced some medical evidence that he was not fit to attend the hearing, that evidence did not adequately address the nature or severity of his medical condition, how long that condition might continue, or how that condition related to the ability of J to attend the hearing. The tribunal further held that it was in the public interest to hear the allegations expeditiously, so that it was appropriate to hear the case in J's absence.



The tribunal found on the evidence before it that the allegations against J were made out, so that it was appropriate to disqualify him for one year from being a member of the local authority. On appeal, an issue arose as to whether the tribunal was entitled to refuse to adjourn the hearing and to proceed in J's absence.



Held, the decision of the case tribunal to refuse to adjourn the hearing and to proceed to determine it in J's absence was one that it was entitled to come to in the exceptional circumstances of this case.



The normal approach in cases where an individual sought an adjournment on medical grounds was to allow such an adjournment, unless strong facts pointed to the contrary. However, the circumstances of this case were exceptional: there was no objective evidence, save possibly as to J's hypertension, that would allow a medical diagnosis of J's condition; J had not communicated with the case tribunal over the period from the date of the original hearing until shortly before the adjourned hearing and it was to be expected that, if J had seen his doctor over that period about his medical condition, he would have been prescribed something for that condition, and that he would have communicated with the tribunal in relation to any difficulties that that condition created; the tribunal had the benefit of seeing J in person and being able to determine whether it was possible for him to represent himself; the material before the tribunal was almost entirely documentary in nature; and this case was not one that depended on a question of credibility or conflict of evidence that could only be determined by oral evidence. There was a public interest in having the allegations against J determined expeditiously.



Appeal dismissed.



No appearance or representation for the appellant; Zoe Leventhal (instructed by the in-house solicitor) for the respondent; Thomas Cosgrove (instructed by the in-house solicitor) for the interested party.





Ecclesiastical



Appeals - canon law - clergy - revocation of licence - no right of appeal

R (on the application of Christopher Donald Gibbs) v Bishop of Manchester: QBD (Admin) (Mr Justice Munby): 15 March 2007
The claimant (G) sought judicial review of the decision of the defendant bishop (B) to terminate G's licence to exercise the office of church army captain by notice.



Certain matters having come to B's attention, B required G to submit to a risk assessment. Following that investigation, B terminated G's licence, giving him three months' paid notice. Canon E7 and Canon E8 governed G's position, and provided that a licence granted to a lay worker might be revoked either summarily for cause or on reasonable notice. Whereas summary revocation was permissible only for cause, no cause was needed for a revocation on reasonable notice; and whereas an appeal lay to the archbishop in any case of summary revocation, no appeal lay against the revocation of a licence on reasonable notice.



G issued judicial review proceedings, which were stayed on the appointment of a further risk assessor. G declined to attend a meeting as part of that process. B subsequently informed G that he had reconsidered his original decision in the light of the second report, but that his concerns about G had not been allayed. B therefore determined that the decision to terminate G's licence by notice had been appropriate and was affirmed.



The original judicial review proceedings were disposed of by consent, and fresh proceedings issued by G. G contended that B had acted wholly unreasonably and unfairly in terminating his licence on notice, and thereby denying him any right of appeal to the archbishop. G submitted that in substance and reality B had revoked his licence for cause, but had done so in a way that denied G the right to challenge B's decision before the archbishop.



B contended that he had been entitled to revoke G's licence on reasonable notice and that the Canons did not provide for any appeal against a revocation on reasonable notice. B argued that the absence of any right of appeal, per se, did not support any contention that it was unreasonable or unfair to revoke a licence on notice.



Held, B had conscientiously and properly decided that it was not appropriate to proceed by way of summary revocation but had given G reasonable notice that he was revoking the licence. In the circumstances, B had been fully entitled to proceed in that way. The Canons did not provide for any appeal in such a case. G's case had come down to a submission that he should be entitled to an appeal in circumstances where the law did not provide for any appeal. Any seeming unfairness to G was nothing more than the inevitable consequence of the legal framework that governed G's office in the church - a framework that permitted B to revoke such a licence, albeit on notice, without showing cause, and without there being any right of appeal from his decision. G's arguments would involve rewriting the law.



Application refused.



Roger Evans (instructed by Anthony Jeremy & May) for the claimant; Geoffrey Tattersall QC (instructed by Michael Darlington) for the defendant.





Environment



Addresses for service - noise - notices requiring service

Butland v Powys City Council: QBD (Admin) (Mr Justice McCombe): 15 March 2007
The appellant (B) appealed by way of case stated against a decision of a magistrates' court that his appeal against a noise abatement notice served on him by the respondent local authority was made outside of the statutory time-limit, so that it had no jurisdiction to hear the appeal.



B had, during the course of investigations by the local authority into noise emanating from a shooting ground run by B, written to the local authority stating that the ground's address (the alternate address) was to be used for all future correspondence with him. Thereafter, the local authority purported to serve a noise abatement notice, pursuant to the Environmental Protection Act 1990, on B at the alternate address, rather than at B's personal address.



B's subsequent appeal against the notice was dismissed by the magistrates' court, which held that the appeal had been lodged out of time. The court held that the notice was properly served, and that the time period for lodging an appeal ran from the date of service, so that B's appeal had, in the circumstances, been lodged out of time.



The question posed for the opinion of the High Court was whether the alternate address given by B became the proper legal address for service of a noise abatement notice. B contended that the address to which the notice was served was not his proper address, within the meaning of section 160 of the Act, as pursuant to section 160(5) the alternate address could only be treated as his proper address for service of notices had he specifically so indicated.



The local authority contended that the word 'correspondence' was an ordinary word that, according to the Shorter Oxford English Dictionary, meant communication by letter, and that a noise abatement notice was a form of communication by letter.



Held, the alternate address given by B for correspondence did not become the proper legal address for service of a noise abatement notice. It could not be said that a notice was a form of communication by letter, and it therefore did not come within the meaning of the word 'correspondence'. Accordingly, the indication by B of the alternate address for correspondence could not be taken as being an indication of an address for service of a noise abatement notice.



Appeal allowed.



Gerard Heap (instructed by Lloyd Williams) for the appellant; Thomas Crowther (instructed by the local authority solicitor) for the respondent.





Extradition



Extradition proceedings - habeas corpus - provisional warrants - time-limits

(1) Vincent Brown (formerly Vincent Bajinya) (2) Emmanuel Nteziryayo (3) Celestin Ugirashebuja (4) Charles Munaneza v (1) Governor of Belmarsh Prison (2) Secretary of State for the Home Department (3) Rwanda: DC (Lord Justice Latham, Mr Justice Lloyd Jones): 13 March 2007
The applicants (B) applied for habeas corpus against the second respondent secretary of state.



B had been arrested and remanded in custody under provisional warrants, with a view to their extradition to the third respondent country, Rwanda. There was no extradition treaty between the UK and Rwanda, so the two countries entered into a series of memoranda of understanding regarding the special extradition arrangements in relation to B. The secretary of state certified under section 194(2) of the Extradition Act 2003 that special arrangements had been made in relation to B, and that Rwanda was not a category 1 or category 2 territory. He further certified that the Act applied to the extradition, with the modification that in section 74(11)(a) the required period of 45 days was replaced by one of 95 days.



B applied to the magistrates' court for their discharge, but the judge refused to determine the applications and gave directions. B submitted that the power conferred on the secretary of state by section 194(4)(b) did not include the power to extend the required period in section 74(11)(a). They argued that if it had been Parliament's intention to give the secretary of state the power to lengthen the required period, it would have done so expressly.



Further, they contended that it could not be argued that, by section 194(4)(a), Parliament had taken away the secretary of state's power to remove the requirement on a state to provide an evidential basis for extradition, but had by section 194(4)(b) nonetheless permitted him to abolish the bars to surrender. B submitted that the word 'modification' in section 194(4)(b) had a narrower meaning than 'amendments', and was limited to making more exacting demands of a territory seeking an extradition, or protecting the interests of the accused.



Held, on a literal reading of section 194(4)(b), the words were wide enough in their natural meaning to permit a modification of the regime applicable to special extradition arrangements, by extending the required period under section 74(11)(a).



Section 194(4)(a) did not limit the scope of section 194(4)(b) or constrain its exercise. The effect of section 194(4)(a) was to remove certain specific powers of modification by the order procedure. The effect of section 194(4)(b) was to confer a more general power of modification by the certification procedure. Clearly, the power under section 194(4)(b) could not be used to modify the parts of the Act identified in section 194(4)(a), which included section 74(11)(b), because the Act was to be applied as if those sections were omitted. But it did not follow that the power under section 194(4)(b) could not be used to modify the provisions of section 74(11)(a).



It was a striking feature of section 194(4)(b) that it conferred on the secretary of state a general power to modify primary legislation without the safeguards of the affirmative resolution procedure that was applicable elsewhere under the 2003 Act. However, that was evidently Parliament's intention, and the words of the section were clear. The word 'modifications' did not have a narrower meaning than 'amendments', and there was no support for the limited interpretation of section 194(4)(b) contended for by B.



Application refused.



Alun Jones QC, David Hooper (instructed by Frank Brazell & Partners) for the first applicant; Alun Jones QC, Joanna Evans (instructed by Robert Lizar) for the second applicant; Ben Watson (instructed by Gittings & Nott Hallinans and O'Keefe's) for the third and fourth applicants; no appearance or representation for the first respondent; Jonathan Swift, Deok Joo Rhee (instructed by the Treasury Solicitor) for the second respondent; Rodney Dixon, Gemma Lindfield (instructed by the CPS) for the third respondent.





Employment



Competitors - confidentiality - interim injunctions - non-competition covenants

Intercall Conferencing Services Ltd v Andrew Steer: QBD (Mr Justice Nelson): 15 March 2007
The applicant employer (E) applied for an interim injunction against the respondent former employee (S) to restrain him from working with named competitors of E.



S had been employed by E in a senior role. His contract of employment included an express confidentiality agreement and a non-competition clause, which prohibited S from being engaged with named businesses which were in competition with E for six months after leaving its employment. S resigned and informed E that he was joining one of the named competitors.



E gave evidence that S had had full access to confidential information, and that there was a real risk of a breach of confidentiality if S were employed by its competitor. S gave evidence that he did not possess any confidential information, considered himself bound by confidentiality, had not breached the agreement, and was prepared to undertake to the court that he would not breach the confidentiality with his new employer.



Held, S had had access to confidential information and there was a real risk of a breach of his duty of confidentiality. The non-competition clause was not too wide or too vague, and the time-limit of six months was not unreasonable. The nature of the confidential information, whether transmitted advertently or inadvertently to E's competitor, was such that customers could be lost or employees poached. Such a potential loss was difficult to calculate. S's undertaking as to confidentiality was not sufficient, and the interim injunction was granted.



Application granted.



M Duggan (instructed by Sidley Austin) for the applicant; S Pearman (instructed by Charles Platel) for the respondent.





Company



Acquisitions - agreements - financial assistance - summary judgments - meaning of 'for the purpose of' in section 151 Companies Act 1985 - lawfulness of contingent transaction fees for introducers

Corporate Development Partners LLC v E-Relationship Marketing Ltd: ChD (Mr Justice Rimer):

9 March 2007
The applicant company (C) applied for summary judgment for fees allegedly due under an agreement with the respondent company (E), which E asserted was unenforceable under section 151 of the Companies Act 1985.



Under the agreement, C was engaged by E to provide consultancy and introduction services aimed at facilitating E's acquisition of other companies. C was to be paid a monthly fee, expenses, and a transaction fee that was contingent on the success of a transaction.



One company (R) was a possible target for acquisition, but R then made an offer to E's shareholders by which R would acquire E. Because of that, E tried to negotiate lower fees with C. When C declined to agree immediately, E terminated their agreement. A new agreement was reached whereby E would be liable to pay a transaction fee of half that provided for under the original agreement in respect of any subsequent transaction involving R. Subsequently, R acquired all shares in E, but E refused to pay C the success fee as it had been advised that the fee was unlawful financial assistance under section 151 and was therefore unenforceable.



C submitted that the section 151 argument was mistaken, as the payment claimed under the agreement was no more than part of the consideration payable by E to C for the overall corporate development services that C provided, and that had been described in the narrative to the first agreement. C further relied on the 'larger purpose' defence of section 153(1) of the Act.

E submitted that, at the time of the second agreement, R was already proposing to acquire E, so the facilitation of that acquisition brought the case within section 151(1).



Held, it was necessary to identify whether, as a matter of commercial reality, E's commitment to pay C a transaction fee if R acquired E had amounted to the provision of relevant financial assistance to anyone - that is, assistance that either directly or indirectly was 'for the purpose' of that transaction, British & Commonwealth Holdings Plc v Barclays Bank Plc [1996] 1 WLR 1, and Chaston v SWP Group Plc [2002] EWCA Civ 1999, [2003] BCC 140 applied.



On the facts, C had initially introduced R to E as a potential target for acquisition by E, not as a company that wished to take E over. In the event, discussions began about the latter course that ultimately led to R acquiring E, but C played no part in them. E's submission that the commitment in the second agreement had facilitated the acquisition was wrong on the facts, since once the introduction had been made by C, it had been up to E and R what commercial association, if any, they chose to negotiate.



At no point after the introduction did C play any role in those negotiations. It was not correct to describe E's commitment to pay a transaction fee to C as amounting to relevant 'financial assistance... for the purpose' of the acquisition. That commitment was not intended to and did not assist or advance the acquisition at all. Accordingly, it had not contravened section 151.



Application granted.



Arshad Ghaffar (instructed by Finers Stephens Innocent) for the applicant; James Barker (instructed by Wedlake Bell) for the respondent.