Human rights


Delegated powers - demonstrations in vicinity of Parliament - police - statutory powers - ultra vires

Director of Public Prosecutions v Brian Haw: DC (Lord Chief Justice Lord Phillips, Mr Justice Griffith Williams): 6 August 2007

The appellant Director of Public Prosecutions appealed by way of case stated against a decision of the magistrates' court that there was no case for the respondent (H) to answer.



H had been conducting a permanent demonstration in Parliament Square, London, against the government's policy on Iraq. Following the enactment of the Serious Organised Crime and Police Act 2005, H sought authorisation from the Commissioner of the Metropolitan Police to continue his demonstration, mostly on his own, but from time to time with others. A superintendent of the police authorised the demonstration subject to certain conditions imposed under section 134(3) of the Act. H was subsequently summonsed for breach of the conditions.



The magistrates held that the commissioner's powers could not be delegated, and that the conditions imposed lacked clarity and were not workable. The questions to be determined were whether the statutory power available to the commissioner to impose conditions on demonstrations under section 134 could be delegated by applying the principles in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 or only as permitted by sections 9A to 9F of the Police Act 1996; and whether the conditions imposed on H were ultra vires or incompatible with articles 10 and 11 of the European Convention on Human Rights, as they lacked clarity.



Held, where a statutory power was conferred on an officer, who was himself a creature of statute, the question of whether that officer had the power to delegate was dependent upon the interpretation of the relevant statute. Where the responsibilities of the office were such that delegation was inevitable, there would be an implied power to delegate unless the statute, expressly or by implication, provided to the contrary, Carltona Ltd, R v Chief Constable of Greater Manchester ex parte Lainton [2000] ICR 1324 and R (on the application of Chief Constable of the West Midlands) v Birmingham Magistrates Court [2002] EWHC 1087 (Admin), Times, 5 June 2002 considered.



The general provisions contained in sections 9A to 9F permitted delegation of the commissioner's powers and duties in circumstances where, having regard to the nature of those powers, there was no implicit power to delegate. However, those powers did not exclude the possibility of delegation to persons other than the deputy or an assistant commissioner where, having regard to the nature of the powers and duties, a power to delegate was implicit. Having regard to the statutory role of the commissioner, it was to be expected that Parliament would confer on the commissioner the powers to be exercised by the police, and leave the commissioner to delegate the exercise of those powers as appropriate.



The authorisation of a demonstration under section 134 was mandatory, provided that the requisite notice had been given. The discretion conferred by section 134 was restricted to determining the conditions to be specified in the authorisation. It was clear that Parliament could not have intended that the commissioner should determine the conditions himself, given the large number of demonstration applications made. The determination of appropriate conditions was a technical matter dependent upon the precise location and nature of the demonstration planned.



The conditions imposed were demonstrated to be unworkable and, as such, were plainly not reasonable and did not satisfy the test of certainty required when considering whether the restrictions on convention rights were 'according to law'.



Appeal allowed in part.



H Keith, C Dobbin (instructed by the in-house solicitor) for the appellant; the respondent appeared in person.





Employment



Equal pay - indirect discrimination - justification - legitimate aim - sex discrimination - trade unions

GMB v S Allen & ors: EAT (Mr Justice Elias (president), P Jacques, S Yeboah): 31 July 2007
The appellant trade union (G) appealed against a decision of the employment tribunal that G's failure to support the respondent female employees (S) in their claims for equal pay constituted both indirect sex discrimination and victimisation.



S were five test claimants that had brought sex discrimination claims against G, the trade union of which they were members. S alleged that G had discriminated against them in the way that it had dealt with their claims for equal pay against the local authority that employed them. The local authority had sought to implement a 'single status' pay scheme, a consequence of which was that some employees were assessed at a lower level than they had been previously, entailing a potential reduction in pay. An additional complication was that many female employees asserted that they had been the subject of past sex discrimination in breach of equal pay legislation. Therefore, G was faced with a situation where the interests of S and others would be served by pressing their historical equal pay claims and securing back pay, but which was set against the need to obtain pay protection for those members who otherwise would have their pay reduced under the single status agreement.



G determined that priority should be given to the interests of those needing protected pay and to achieving equality for the future, rather than to maximising the back pay claims in the interests of S. The employment tribunal found that there had been no direct sex discrimination on the part of G, but that there had been indirect discrimination on the basis that the policy or practice it adopted could not be justified in accordance with section 1(2)(b)(ii) of the Sex Discrimination Act 1975.



The tribunal also concluded that there had been victimisation by G on the basis that the decision by S and others to obtain advice from a solicitor had been treated as a defection and, consequently, had provided no more support to them in their litigation claims.



G submitted that the tribunal erred in finding that there had been indirect discrimination and victimisation of S. G argued that once the tribunal had rejected a claim for direct discrimination, it was inappropriate to try and fit the facts into an indirect discrimination analysis, and that G was objectively justified in adopting the position it took.



Held, to determine if there was indirect discrimination, there had to be consideration of whether the position adopted by G constituted a provision, criterion or practice within the meaning of section 1(2)(b) and, if so, whether that practice had a disparate effect that was justified.



G had adopted a practice with roots in earlier discrimination, as was recognised by the tribunal, since G was not using its negotiating pressure equally for the benefit of all. It was an inevitable result of the policy, for reasons connected with their sex and not by chance, that women were in the lower-paid jobs with equal pay claims. The tribunal approached the issue of any disparate effect resulting from the policy perfectly properly and reached a conclusion that was inevitable on the statistical material available. Thus, the real issue was whether the policy adopted by G could be considered to be objectively justified and proportionate to the attainment of a legitimate aim, Barry v Midland Bank Plc [1999] 1 WLR 1465 applied.



The tribunal appeared to have concluded that G's aim was legitimate, but that the methods used to reach the aim were disproportionate in fixing its priorities as it did. Inevitably, there would be situations where a union had to press for the interests of one group of members at the expense of another. The concept of proportionate means was not to focus upon whether G had or had not conducted itself appropriately, but on whether the difference in treatment could be justified as a proportionate response to a legitimate objective. If an objective was legitimate, it was difficult to see how it could be alleged that the means were inappropriate. Although G might have misled some members into accepting the priorities without a full understanding of what was involved, that did not suggest that other more proportional means could have been used to achieve the same objective.



The tribunal dealt with the issue of victimisation very briefly in a confusing and inconsistent manner. The tribunal initially appeared to indicate that S's claim failed on the basis that there had been no less favourable treatment. However, it went on to note that G's decision to remind the local authority that those union members who had not sought to litigate their equal pay claims should receive the same as those who did and were successful, prejudiced those who were litigating. Where there were limited funds, the amounts received by successful litigants would have to be reduced to accommodate those that had not lodged claims and were in a similar position.



The tribunal felt bound by authority to find that S had been victimised, Nagarajan v London Regional Transport [2000] 1 AC 501 cited. That conclusion was incorrect, as G had only been trying to ensure equal treatment for all by the local authority, and the fact that S was affected by that reminder did not amount to victimisation. There was no evidential basis upon which the tribunal could properly have concluded that G had victimised S by failing to support their litigation attempts, Chapman v Simon [1994] IRLR 124 considered.



Appeal allowed.



John Cavanagh QC, Jason Galbraith-Marten (instructed by Thompsons) for the appellant; Andrew Stafford QC, Christopher Quinn (instructed by Stefan Cross) for the respondent.





Civil Procedure



Adjudication - stay of proceedings - sub-contracts - binding agreement to adjudicate

DGT Steel & Cladding Ltd v Cubitt Building & Interiors Ltd: QBD (TCC) (Judge Peter Coulson QC): 4 July 2007
The applicant main contractor (C) applied for a stay of proceedings commenced by the respondent sub-contractor (D) until an adjudication of the underlying dispute had taken place.



C had engaged D to carry out external cladding works at a site where C was the main contractor. The sub-contract contained an adjudication provision. Pursuant to that provision, D referred to adjudication a claim that it was owed a substantial sum by C. The claim was resisted by C and the adjudicator found in C's favour and rejected the whole of D's claim.



D then commenced proceedings against C. C argued that the claim in the proceedings was different to the claim in the adjudication and that, as a result of the binding adjudication agreement in the contract, the litigation should be stayed until the new claim had been the subject of adjudication. D argued that there was no mandatory adjudication provision and, even if there was, there was no breach of that agreement and therefore there should be no stay; the new claim was essentially the same as that which had already been adjudicated; in any event, the court should exercise its discretion against granting a stay.



Held, the court had an inherent jurisdiction to stay court proceedings issued in breach of an agreement to adjudicate, Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, Cape Durasteel Ltd v Rosser and Russell Building Services Ltd 46 Con LR 75 and Cott UK Ltd v FE Barber Ltd [1997] 3 All ER 540 applied. The jurisdiction was discretionary but there was a presumption in favour of the parties' agreement to adjudicate, putting the persuasive burden on the party resisting the stay to show good reasons for its stance, Cott and Cable & Wireless Plc v IBM United Kingdom Ltd [2002] EWHC 2059 (Comm), [2002] 2 All ER (Comm) 1041 applied.



The wording of the relevant clause, by the use of the word 'shall', made adjudication 'in the first instance' mandatory. Even if the clause was not a mandatory adjudication provision, the right to refer would be conferred on both parties and C would still have a right to have any dispute referred, in the first instance, to adjudication. Because there was a binding adjudication agreement, C would still be entitled at least to ask the court to exercise its discretion to grant a temporary stay of the court proceedings.



The dispute that was the subject of the adjudication was a technical dispute about the operation of the contract terms. The dispute in the court proceedings principally concerned the validity of D's valuation of the entirety of its sub-contract works and the deductions made by C. The disputes were therefore substantially different. Since the dispute in the court proceedings was not one that had been referred to adjudication, the proceedings constituted a breach of the adjudication agreement. C was entitled to a stay unless D could show a good reason why no such stay should be imposed.



Factors in favour of a stay were D's failure to comply with the Technology and Construction Court pre-action protocol, and the fact that the dispute was a relatively common type of construction dispute which an adjudicator would have no difficulty in grasping and deciding. There was nothing to suggest that it would be cheaper to litigate than adjudicate. The stay would only be until after the adjudication and would not permanently bar D from access to the court. In the circumstances, there was no good reason for the court not to exercise its inherent jurisdiction to stay the proceedings for adjudication.



Application granted.



Edward Sawyer (instructed by Fenwick Elliott) for the applicant; William Webb (instructed by Birketts) for the respondent.





Clinical Negligence



Conduct - dependency claims - equitable remedies - fatal accident claims - limitations - loss of earnings

(1) Victor Robert Thompson (widower, administrator & dependant of the estate of Wendy Thompson, deceased) (2) Samantha Thompson and (3) Chloe Thompson (children & dependants of the estate of Wendy Thompson, deceased, by their father and litigation friend, Victor Thompson) v Christine Arnold: QBD (Mr Justice Langstaff): 6 August 2007
On a trial of a preliminary issue, it fell to be determined whether a claim under the Fatal Accidents Act 1976 could be brought by the claimants (T), who were the widower and children of the deceased (D), where D had, in her lifetime, settled her claim for damages against the defendant doctor (C) for personal injury.



C had wrongly diagnosed a cancerous lump in D's breast as benign. D subsequently issued proceedings. The schedule of loss and damage made no claim for the lost years. D obtained a judgment in default of defence.



At a directions hearing, the judge suggested that the quantum claim might be better dealt with by way of an interim payment to D, with the remainder, namely the children's claim, left to be dealt with after D's death. C also raised such a possibility, but D did not adopt that approach. The claim was subsequently settled.



Unaware that a claim under the Act could not, in accordance with Read v Great Eastern Railway Co [1867-68] LR 3 QB 555 and subsequent authorities, be brought where damages had already been awarded or had been agreed in respect of the victim's injury during her lifetime, T brought a claim under the Act after D's death.



T contended that the construction of the Fatal Accidents Act 1846, which the 1976 Act consolidated, adopted in Read was wrong and that the court had a duty to interpret the 1976 Act so as to secure the rights guaranteed by articles 6 and 8 of the European Convention on Human Rights. T also submitted that C should not be permitted to rely on the settlement because it was incomplete, and argued that D's claim had not extended to a claim in respect of the lost years and that, therefore, either the settlement could be reopened so that the lost years' claim could be advanced, or it subsisted with the effect that T were not precluded from claiming under the Act.



C submitted that T should be denied equitable relief by reason of D's conduct; in particular, D had advanced a claim for her husband's loss of earnings when such a claim was not considered recoverable and D had thought that C had made various mistakes in the quantification of the claim but had not alerted her to any of them.



Held, the case of Read was correctly decided as a matter of statutory construction, Read and Reader v Molesworths Bright Clegg Solicitors [2007] EWCA Civ 169, [2007] 1 WLR 1082 applied and Pickett v British Rail Engineering Ltd [1980] AC 136 considered. The 1976 Act should be read as effecting no change in the interpretation of the earlier Act. The purpose of the Act was not to ensure that there was a benefit conferred upon the children of the deceased: the focus was on ensuring that the tortfeasor did not escape paying damages. The Act referred to wrongful acts that would, if death had not ensued, entitle the injured person to recover damages. That was a reference to a rule that antedated the 1846 Act that death extinguished a personal cause of action. If death brought the right of action into play, that would give rise to the prospect of double recovery for the same wrongful act.



The lifetime victim could, as in the present case, sue for loss of earnings during the lost years and the dependants would have a right of action for financial dependency on her death. That was not the intention of the statute, Read applied.



The statutory construction did not offend against articles 6 or 8. The right given by the Act to dependants to sue existed where the victim had not had the opportunity of obtaining funds which, indirectly, might have benefited those who depended upon her income. Not to permit a further claim against C where C had already satisfied a claim did not show any lack of respect for private or family life.



Section 12 of the Limitation Act 1980 also prevented T from bringing a claim under the Act. Once she had settled her claim, D could no longer maintain an action and recover damages in respect of her injury.



The settlement could be re-opened if the law of mistake permitted it. There was no general duty on one party to point out the mistakes of another, Thames Trains Ltd v Adams [2006] EWHC 3291 (QB) applied. The present case was not one in which equity should provide relief from the consequences of unilateral mistake, Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407, [2003] QB 679 considered. C had taken advantage of a patent mistake by D, but the mistake had not been instigated by C and had been compounded by D's failure to respond to hints as to a better course of action from both the judge and C.



In the circumstances, C's conduct was not unconscionable, Commission for the New Towns v Cooper (Great Britain) Ltd (formerly Coopind UK) [1995] Ch 259 distinguished on the facts. Relief would have been declined in any event because of D's conduct.



Preliminary issue determined in favour of defendant.



Patrick Lawrence QC (instructed by Irwin Mitchell) for the claimants; Adrian Hopkins QC (instructed by Berrymans Lace Mawer) for the defendant.





Company



Administration - directors disqualification proceedings - dissolution - jurisdiction

Secretary of State for Trade & Industry v (1) Jason Arnold (2) Keith James Hopley: ChD (Manchester) (Judge Pelling QC): 10 August 2007
The applicant secretary of state applied for a declaration in relation to director disqualification proceedings, which had been commenced under section 6 of the Company Directors Disqualification Act 1986 after the company had been placed in administration and then dissolved by operation of paragraph 84(6) of schedule B1 of the Insolvency Act 1986.



The perceived difficulty which arose was whether the court had jurisdiction to entertain the disqualification proceedings as the court which 'has' jurisdiction to wind up the company within section 6(3) of the Disqualification Act or whether, since the company no longer existed, the secretary of state had to make an application to restore the company to the register.



Held, when consideration was being given to reforming the law applicable to administration by introducing schedule B1 into the Insolvency Act 1986, consideration was also given to amending section 6(3) of the Disqualification Act. It had not been necessary to amend section 6(3)(c) to take account of automatic dissolution under paragraph 84(6) of schedule B1 since, on its proper construction, it conferred jurisdiction even where automatic dissolution had occurred. The word 'has' in the phrase 'which has jurisdiction' related back to the phrase 'has at any time been appointed' with the result that the question that had to be asked when considering jurisdiction was whether there was a court with jurisdiction to wind up the company concerned at the date when the administrator or administrative receiver was appointed. That approach was entirely consistent with the methodology in the rest of section 6(3). That interpretation avoided an absurdity and enabled the disqualification proceedings to be resolved quickly on their merits.



Declaration granted.



Lucy Wilson-Barnes (instructed by Dickinson Dees) for the applicant; no appearance or representation for the respondents.