Landlord & Tenant


Possession - secure tenancies - suspended possession orders - tolerated trespass

London & Quadrant Housing Trust v Ansell: CA (Civ Div) (Lords Justice Chadwick, Lloyd, Mr Justice Stanley Burnton): 19 April 2007

The appellant (T) appealed against a decision ordering her to give up possession of her dwelling house to the respondent social landlord (L).



T was a secure tenant. L had issued a summons for possession of the property on the ground that the rent was unpaid and in arrears. An order for possession had been made. The order had been suspended on condition that T paid the unpaid rent and costs by installments.



T was soon in breach of the terms of that order. Nevertheless she remained in occupation as a tolerated trespasser and succeeded in paying off the arrears some three and a half years later. Five years after the suspended possession order had been made L sought possession in fresh proceedings, taking the view that it was no longer possible to enforce the earlier possession order.



In her defence, T claimed that the new proceedings were misconceived and that the proper course was to attempt to enforce the previous possession order in proceedings in which the court's powers under the Housing Act 1985 s.85(2) would be exercisable.



The judge held that in accordance with its terms: the first possession order could no longer be enforced once the arrears and costs had been paid; that L had been entitled to bring a fresh possession claim to show that T's trespass was no longer tolerated; and that T had no good defence.



T submitted that the judge had erred in law in holding that L had been entitled and required to bring a fresh claim for possession, and in holding that a possession order was enforceable in the county court otherwise than by warrant, thereby circumventing the provisions of s.85(2) of the Act. Held, if it had been open to L to issue and execute a warrant of possession under the first possession order there would be a powerful reason for accepting T's contention that possession could not be sought in the instant proceedings. It would be wrong to allow the protection afforded by s.85(2) of the Act to be circumvented by proceeding otherwise than under that order.



However, there was no appeal against the finding that the terms of the order as to payment of the arrears and costs had been fully complied with. It followed that the original order for possession was not thereafter enforceable and in the circumstances the court's powers under s.85 had not been exercisable when the instant proceedings were commenced, Swindon BC (formerly Thamesdown BC) v Aston [2002] EWCA Civ 1850, [2003] HLR 42 applied.



Therefore the instant proceedings were not misconceived. L was not seeking to enforce the original order for possession. The judge had been entitled to conclude that T had become a tolerated trespasser, that L was required to bring a fresh claim for possession, which it had done, and that that was a valid and lawful claim for possession that succeeded.



On a proper analysis of his reasoning, the judge could not be said to have held that a possession order was enforceable in the county court otherwise than by a warrant of possession: he held that the original possession order was not enforceable and that L was not seeking to enforce that order. He did not fall into the error of allowing a possession order made under the 1985 Act to be enforced in a manner that circumvented the provisions of s.85(2) of that Act.



Appeal dismissed.



Matthew Feldman (instructed by Clifford Watts Compton) for the appellant; Zia Bhaloo (instructed by Trowers & Hamlins) for the respondent.





Family



Consent - habitual residence - international child abduction - wrongful removal or retention

W v F: Fam Div (Mr Justice Sumner): 4 April 2007
The applicant father (W) applied for the summary return of his son (S) to the jurisdiction of the courts of the United States pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980.



W, a US national, had married the respondent (F), a United Kingdom national. Initially they lived in England, but about seven years after S's birth W moved to the US and a month later F and S joined him. The relationship came to an end about eight days later, and F subsequently returned to the UK with S.



W contended that he had consented to F leaving with S on the basis that she would return to the US a few months later, and that she unlawfully retained S when she did not do so. F contended that a period of about eight days was not an appreciable period of time to establish habitual residence for the purpose of article 4 of the Convention and that, in any event, W had agreed to her leaving the US permanently with S.



Held, a period of seven or eight days was not an appreciable period of time to establish habitual residence. The period of time was by itself too short.



Further, while F had had a settled intention to remain in the US with W and S when she had arrived there, that had evaporated within a day or two. S's habitual residence was dependent on F's, and her new residence in the US had not become either settled or habitual, M (Minors) (Residence Order: Jurisdiction), Re [1993] 1 FLR 495, F (A Minor) (Child Abduction), Re [1992] 1 FLR 548 and Nessa v Chief Adjudication Officer [1999] 1 WLR [1937] considered.



Accordingly, S was not habitually resident in the US for the purpose of Article 4 of the Convention.



Even if S's habitual residence in the US was established, W had consented to S permanently leaving the US. The court exercised its discretion under Article 13 of the Convention in favour of S remaining in the UK.



Application refused.



Mark Jarman (instructed by Ross & Craig) for the applicant; Judith Charlton (instructed by Reeves & Co) for the respondent.





Employment



Continuity of employment - corporate personality - employers' liability - share sales - transfer of undertakings - evidence of transfer of business

The Print Factory (London) 1991 Ltd v R Millam: CA (Civ Div) (Lords Justice Buxton, Wilson, Moses): 19 April 2007
The appellant (M) appealed against a decision of the Employment Appeal Tribunal (EAT) that his employment had not been transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 from his original employer (F) to another company (C), which had been acquired by the respondent (P).



M had acquired F by means of a share-sale agreement. The two companies were separately registered and had separate VAT registrations and accounts. However, C took over the payment of M's wages and managed the pension scheme to which M contributed. C also took over F's sales function and provided F with work. Both companies subsequently went into administration.



M was dismissed the day before the transfer of C's business to P. M complained of various breaches of employment law. P acknowledged that if M was C's employee at the date of termination of employment, P might have liabilities towards him.



The employment tribunal held that the share sale agreement gave the superficial impression that no transfer had occurred and that, on the evidence, a transfer under the Regulations had taken place.



The EAT, reversing that determination, held that the tribunal had impermissibly pierced the corporate veil, that as a matter of law the businesses of F and C were located in separate companies and had operated independently and that it was plain that F had retained its own assets and its own employees. Held, the EAT had misdirected itself on the issue of piercing the corporate veil, which only arose when it was established that an activity was carried on by a company, but in reality the activity was the responsibility of the owner of that company. Therefore, in order to pierce the veil it had to be shown that the subsidiary company was a sham. But that stage was only reached when it was established that the activity was indeed being carried on by the subsidiary.



In the instant case, the tribunal had found that it was C, and not F, that had carried on the activity in the first place and therefore no judicial effort to pierce the veil and render C liable for what had been done by F was required. By concentrating on the issue of corporate structure, the EAT had failed to give proper weight to the findings of the tribunal.



Whether F's business had been transferred to M was a question of fact that had to be resolved deploying the experience and expertise of the tribunal. The mere fact of control, which would follow from the relationship between parent and subsidiary, would not be sufficient to establish the transfer of the business from subsidiary to parent.



In the instant case, the tribunal had identified a number of evidential indications, which, in combination, established that control of the business, in the sense of how its day-to-day activities were run, had passed from F to C. On the evidence, the tribunal had been entitled to conclude that there had been a transfer of F's business to M. Therefore there was no ground on which the EAT could have legitimately interfered with that conclusion.



Appeal allowed.



Marc Living (instructed by Coole & Haddock) for the appellant; Timothy Pitt-Payne (instructed by AP Partnership) for the respondent.





Defamation



Damages - justification - libel - summary judgments - previous decision striking out defence of justification - vindication

Purnell v Business F1 Magazine Ltd & Anor: CA (Civ Div) (Lords Justice Chadwick, Laws, Evans-Lombe): 18 April 2007
The appellants (B) appealed against an award of damages for vindication in a libel action brought by the respondent (P).



B had written an article in its magazine about P. P issued proceedings for libel and B's defence was justification. P applied to strike out B's defence and the application was granted on the basis that no reasonable jury could conclude there was any justification for the article.



The only remaining issue was the level of damages, which was subsequently decided by a jury who awarded £75,000 for injury to feelings, injury to reputation and vindication.



B contended that the judge was wrong in principle to allow the jury to include damages for vindication because the judge, by striking out the defence, had fully vindicated P.



Held, there were three possible positions where damages for defamation had to be decided and there was a previous judgment in the case: (a) the earlier judgment should always be taken into account; (b) the earlier judgment should never be taken into account; and (c) the earlier judgment might be taken into account depending on the court's view of the position, Associated Newspapers Ltd v Dingle [1964] AC 371 applied.



A prior narrative judgment that rejected the defence of justification was at least capable of providing some vindication and, accordingly, position (c) was correct. The effect of the previous judgment was dependent on all the circumstances but, in relation to vindication, was likely to be marginal. The proposition that a prior judgment always negated vindication represented a straitjacket with no scope for consideration of all the circumstances.



However, in the instant case B had done their best to escape the previous decision and had tried to suggest to the jury that the libel was true. There could be no criticism of the judge's direction on vindication and no criticism of the jury's award of damages.



Appeal dismissed.



David Price (solicitor advocate) for the appellants; William Bennett for the respondent.





Mental Health



Detention - impartiality - mental health review tribunals - restricted patients - right to liberty and security

R (on the application of RD) (claimant) v Mental Health Review Tribunal (defendant) & Secretary of State for the Home Department (interested party): QBD (Admin) (Mr Justice Munby): 4 April 2007
The applicant restricted patient (D) applied for permission to apply for judicial review of a decision of the respondent tribunal that he should not be discharged from Broadmoor.



A hospital order, restricted without limit of time, had been made in respect of D following his conviction for manslaughter and he had been detained at Broadmoor, having been diagnosed as suffering from paranoid schizophrenia. Before the hearing by the tribunal convened to review D's case, and in accordance with the Mental Health Review Tribunal Rules 1983 r.11, the medical member of the tribunal (B) examined D.



The president of the tribunal gave an account of B's interview with D and concluded by reporting a 'very preliminary' view that D would appear to need the regime of a secure unit rather than community living. The tribunal went on to find that D did not need to be detained once his victim offenders group concluded later in the month, although it would be wrong to assume that D's transfer into the community could safely be achieved without a phased and monitored rehabilitation. The tribunal therefore decided that D should not be discharged.



D contended that B had gone far beyond her remit under r.11 in forming an opinion as to whether he should continue to be detained and in communicating that opinion to other members of the tribunal. D submitted that his right to an independent and impartial judicial determination of the lawfulness of his detention, under the European Convention on Human Rights 1950 Article 5, was thereby breached. D further argued that the use of conditions meant that the test for detention was no longer met, and that the tribunal's reasons had failed to explain whether it accepted that proposition, and, if so, why the use of conditions did not mean that the test for detention was no longer met in his case.



The tribunal submitted that it had clearly set out its reasons for D's continued detention in accordance with the Mental Health Act 1983 s.72(1)(b) and s.72(1)(b)(ii).



Held, rule 11 of the rules and the procedure to which it gave rise were compliant with the Convention, R (on the application of S) v Mental Health Review Tribunal [2002] EWHC 2522, Times, December 6, 2002 applied.



The communication by the medical member of a 'very preliminary' view was manifestly lawful, notwithstanding that it went to the ultimate issue and not merely to the question of D's mental condition. There was nothing in r.11 to disable the medical member from doing what she (like the other members of the tribunal) would otherwise plainly be entitled to do - namely to discuss all aspects of the case with the other members of the tribunal before the hearing and to express to them her preliminary views, either on the case as a whole or on any particular aspect of the case. Just as there was nothing in r.11 to disable the medical member (like the other members of the tribunal) from expressing to the parties at the outset of the hearing her preliminary views, either on the case as a whole or on any particular aspect of the case. The contrary was simply unarguable. D's challenge on that ground had, therefore, failed.



A conclusion that a restricted patient's transfer into the community could not be safely achieved without a phased and monitored rehabilitation was the very converse of the proposition that the use of conditions would make detention unnecessary, R v Oxford Regional Mental Health Tribunal Ex p Secretary of State for the Home Department [1988] AC 120 and R (on the application of H) v Secretary of State for the Home Department [2003] UKHL 59, [2004] 2 AC 253 considered.



In the instant case, the tribunal had quite plainly given adequate and intelligible reasons that had sufficiently identified and explained both its central findings of fact and its overall conclusions in relation to both s.72(1)(b)(i) and s.72(1)(b)(ii) of the Act. There was no arguable merit in D's complaint, and his application therefore failed.



Application refused.



Roger Pezzani (instructed by Campbell Law) for the claimant; Jonathan Moffett (instructed by Treasury Solicitor) for the defendant; Martin Chamberlain (instructed by Treasury Solicitor) for the interested party.