Civil Procedure


Case management - consequences of failure to comply with unless order - relief from sanctions

Marcan Shipping (London) Ltd v (1) George Kefalas (2) Candida Corporation: CA (Civ Div) (Lords Justice Pill, Keene, Moore-Bick): 17 May 2007

The appellant (M) appealed against a decision dismissing its claim and giving judgment in favour of the respondents (K and C) for the costs of the action to be assessed on the indemnity basis, following M's failure to comply with an unless order.



M was a shipbroking company controlled by an individual (Y). K was a shipowner and C was his ship management company.



M had commenced proceedings against K and C, seeking damages for the wrongful termination of a general agency agreement alleged to have been made orally between K and Y more than 20 years previously. K denied that there was any such general agency agreement. A trial date was fixed and then vacated when the respondents obtained permission to amend.



The judge ordered the parties to give further disclosure. M failed to comply with the order and the judge made an unless order. M failed to comply with that order and the judge dismissed the claim, finding that there had been a clear breach of the order and no explanation of why M had failed to comply and what steps had been taken to enable it to do so. M submitted that the striking out of a claim for failure to comply with an order of the court could not be justified unless the breach was so serious as to prevent there being a fair trial, a requirement that the judge had failed to consider and that was not satisfied in this case.



Held, the sanction embodied in an unless order in traditional form took effect without the need for any further order if the party to whom it was addressed failed to comply with it in any material respect, Carlco Ltd v Chief Constable of Dyfed Powys [2002] EWCA Civ 1754 doubted, Keen Phillips (A Firm) v Field [2006] EWCA Civ 1524, [2007] 1 WLR 686 distinguished. That had a number of consequences: first, it was unnecessary and inappropriate for a party who sought to rely on non-compliance with an order of that kind to make an application to the court for the sanction to be imposed; second, the party in default had to apply for relief from the sanction under rule 3.8 of the Civil Procedure Rules if he wished to escape its consequences; and third, before making conditional orders, particularly orders for the striking out of statements of case or the dismissal of claims or counterclaims, the judge should consider carefully whether the sanction being imposed was appropriate in all the circumstances of the case.



The effect of the unless order made in the instant case was that in default of compliance, the claim stood dismissed and M became liable to pay the defendants' costs in an amount to be assessed. As a result, the defendants became entitled to obtain judgment in their favour, but since the party in default was the claimant, it was necessary for the defendants to make an application to the court in order to do so under rule 3.5(5); and since there was a dispute about whether M had failed to comply with the order, it was necessary for that application to be supported by evidence setting out in sufficient detail the nature and extent of the alleged default.



The only matters the judge had to decide, therefore, were whether the evidence was sufficient to establish a breach of the unless order and, if so, whether the order being sought by the defendants properly reflected the effect of the sanction that that order had contained. The judge had erred if he had treated the application as one under rule 3.4(2)(c) to strike out the claim for failure to comply with a court order to which no specific sanction had been attached.



However, the order made by the judge was right in all the circumstances. The judge's finding that there had been a clear breach of the unless order had not been challenged and it followed that the sanction for which that order provided became effective. In those circumstances, it was not appropriate to hear argument on appeal about whether that was an appropriate response to the failure to comply with the order, since it was the consequence for which the order itself provided.



Appeal dismissed.



Neil Henderson (instructed by Jackson Parton) for the appellant; Graham Charkham (instructed by Thomas Cooper & Stibbard) for the respondents.



Criminal



Attempts - causing children to engage in sexual activity - child sex offences - criminal investigations - entrapment - incitement

R v Ian Anthony Jones: CA (Crim Div) (Lord Justice Thomas, Mr Justice Penry-Davey, Mr Justice Wyn Williams): 15 May 2007
The appellant (J) appealed against his conviction for an attempt to commit an offence under section 8 of the Sexual Offences Act 2003.



The police had received reports of graffiti being written in black marker on the toilets of trains and stations seeking girls of eight to 13 years old for sex, offering payment and leaving a contact number. A journalist saw one of the messages, telephoned the number and made contact with J. She then received several text messages from him, which requested confirmation of her age and whether she was prepared to perform oral sex.



The journalist contacted the police, who began an undercover operation using an officer posing as a 12-year-old girl. The undercover officer exchanged several texts with J that clarified her age and arrangements for a meeting, although he failed to turn up. J sent the officer further text messages of an explicit nature including various sexual acts that he expected he would be able to perform on her. J and the officer arranged to meet again, and J was arrested. He was found in possession of the mobile phone used to send text messages to the officer and a black marker similar to the type used for writing the graffiti. A handwriting expert later concluded that J probably wrote the graffiti.



J was charged with a number of offences including attempting to incite a child under 13 years old into penetrative sexual activity pursuant to section 8. J submitted that it was a case of entrapment. He contended that he only believed he was communicating with a real child due to the deception of the police, and that no offence would have been committed otherwise; there was no offence known to law. J argued that he did not have the requisite intention to commit the alleged attempt because it was an essential element of the offence that he intended to cause an actual child under the age of 13 to engage in sexual activity, but there was no actual child in this case; and it was only because the police had chosen the age of 12 that J was charged with the more serious offence under section 8 and there was no evidence that it mattered to J that the undercover officer was younger than 13.



Held, the criminality of the offence was the incitement of children under the age of 13 to engage in sexual activity, and it did not matter if it was directed at a particular child or whether the child could be identified, R v Most (1880-81) LR 7 QBD 244 applied. It was clear from J's conduct with the journalist that he was looking for opportunities to incite a child to penetrative sexual activity. The police did not incite or instigate a crime but merely provided the opportunity for J to commit a similar offence and provide evidence for a conviction. The officer did no more than pretend to be a child of a particular age; it was J who thereafter went on to incite penetrative sexual activity. It was also relevant to take into account the actions of the journalist in answering the graffiti message as a further measure by which the acceptability of the police conduct could be judged. The offence was not instigated by the police but by J's own actions, Re Attorney General's Reference (No3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060 applied.



J had the objective and the intention of inciting a particular child to engage in penetrative sexual activity, his intention was to evade the prohibition of the law, and his acts were more than merely preparatory to commission of the offence, R v Shivpuri (Pyare) [1987] AC 1 applied. J could not argue that by reason of the police having substituted an adult for a child, provided the other elements of the offence were made out, that there was a defence in law to the charge.



The police did not behave improperly in choosing the age of 12. It was J who had asked the officer for her age, and he therefore believed that he was inciting penetrative sexual activity with a child under 13. The graffiti on the train was evidence that J directed his activities to eight to 13 year olds.



Appeal dismissed.



Jeffrey Lamb for the appellant; Christine Laing QC, Henrietta Paget for the respondent.



Human Rights



Child abuse - conflict of interest - duty of care - investigations - right to respect for private and family life - local authority's duty to parent suspected of child abuse

Stephanie Lawrence v Pembrokeshire County Council: CA (Civ Div) (Lords Justice Auld, Scott Baker, Richards):

15 May 2007
The appellant (L) appealed against a decision ([2006] EWHC 1029, [2006] 2 FCR 363), striking out her claim in negligence against the respondent local authority (P).



P had placed L's children on the child protection register for about 14 months. The ombudsman upheld a number of complaints by L of maladministration on P's part and recommended that it should pay her compensation. L then issued proceedings in negligence against P. The judge held that the reasoning of the majority of the Law Lords in JD v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373, that a duty of care was not owed by investigating professionals to parents suspected of child abuse, had not been affected by the advent of article 8 of the European Convention on Human Rights to domestic law.



L argued that the advent of article 8 to domestic law called for an evolutionary change in the law of negligence where, as in the present context, it overlapped with a parent's right to respect for his or her family life. L submitted that the court should take a 'small incremental step' further than that taken by it and the House of Lords in East Berkshire, so as to give full effect to article 8 in serving the interest of parents in family life as much as that of the child.



Held, L's proposed 'small incremental step' in the development of the common law would be a step too far. The public interest in effective and fair investigation, and the prevention of criminal behaviour, had fashioned the common law to protect those suspected of it from malice or bad faith, but not from a well-intentioned but negligent mistake. The basis for that distinction was the need to provide protection to those who had a duty to enforce the law in good faith from the imposition of a duty in negligence that could or might tend to inhibit them in the effective fulfilment of that duty.



The development proposed would fundamentally distort the law of negligence in this area, putting at risk the protection for children which it provided in its present form. Article 8, with its wholly different legal construct of engaging liability without reference to a duty of care, complemented it in facilitating a similar protection through a mechanism for justification. The provision of a discrete convention remedy through the medium of the Human Rights Act 1998 did not, on that account, necessitate a change of the common law in the manner proposed.



The present court and the Lords had recently clarified in the relevant principles of the common law, including the effect or lack of effect in relation to that issue of the impact of the 1998 Act, concluding that they precluded the existence of such a duty to the parent. That reasoning still stood, East Berkshire followed, Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495, Sullivan v Moody 207 CLR 562 and B v Attorney General of New Zealand [2003] UKPC 61, [2003] 4 All ER 833 applied, and TP v United Kingdom (28945/95) [2001] 2 FLR 549 and Venema v Netherlands (35731/97) [2003] 1 FLR 552 considered.



Appeal dismissed.



Robert Weir (instructed by Hugh James) for the appellant; Alastair Hammerton (instructed by Dolmans) for the respondent.



Property



Dominant tenement - easements - rights of way - merger of leasehold and freehold interests - continuation of right of way despite merger

Keith John Wall v Brian Collins & Anor: CA (Civ Div) (Lords Justice Mummery, Carnwath, Hooper):

17 May 2007
The appellant landowner (W) appealed against a decision that he did not have a right of way over a passageway running between his property and that of his neighbours (C).



W was the freehold owner of a house and C were the owners of an adjoining property. W was also the owner of a leasehold interest in a plot of land to the rear of the house on which he had built a garage.



The original leasehold of both the house and C's property had been granted for a term of 999 years in 1910. W bought the house in 1999 and the freehold interest was transferred to him but the leasehold interest was not separately registered and the reference to the 1910 lease in the charges register was removed. W claimed a right of way over a passageway running between the house and C's property on the basis that it had been granted by way of an assignment made in 1911.



The judge held that the right of way granted by the 1911 assignment could only attach to the leasehold interest in the house, which was what was being assigned, and that if a leasehold estate was merged with a freehold estate, any easements or covenants attached to the leasehold interest were extinguished. The judge further found that the leasehold interest in the house had ceased to exist by way of a merger and that, in any event, the leasehold interest was surrendered by operation of law in 1999 when W acquired the freehold.



Held, the premise of the judge's reasoning was that the right of way was attached to the 1910 lease and that therefore when the lease was extinguished by merger, the right was lost. That approach was wrong. An easement had to be appurtenant to a dominant tenement, but not necessarily to any particular interest for the time being. All that mattered was that the grantee had an interest at least co-extensive with the period of the easement. It followed that the merger of the lease into a larger interest in the dominant tenement was not in itself fatal to the continued existence of the easement for the period for which it was granted. The dominant tenement remained unchanged and there was no legal impediment to the continued enjoyment of the easement by the occupier for the time being of that tenement. The merger of the lease in 1999 did not destroy the easement, at least to the extent of the 1911 grant, and the 999-year right was amply sufficient for W to benefit from the right of way.



In relation to the question as to whether an equivalent right of way passed with the conveyance of the freehold of the house, section 62 of the Law of Property Act 1925 provided direct support for the argument that W's right of way was not limited by the extent of his former leasehold interest. In the absence of any indication of contrary intention, the right of way, which was capable of being the subject of an easement, should in principle be treated as having passed with the freehold. The disappearance by merger of the lease of the house in 1999 did not affect the continuation of the right for the benefit of the freehold, Kent v Kavanagh [2006] EWCA Civ 162, [2007] Ch 1 applied.



Even where the original dominant tenement was extended, the enjoyment of the easement could continue for the benefit of the enlarged property if the additional use was merely ancillary. In the present case, there was no reason for holding that the use of the garage on the plot of land was anything other than ancillary to the ordinary residential use of the house and the right of way could therefore be used to benefit the use of the garage. The appropriate declaration was that W, as owner of the house and of the plot of land, enjoyed a right of way over the passageway to the extent that it was reasonably required for the convenient enjoyment of the house.



Appeal allowed.



In person (with a McKenzie friend) for the appellant; Ian Foster (instructed by Widdows Mason) for the respondent.