Family
Children - expert evidence - reasons - shared residence orders
RE M (a child): CA (Civ Div) (Lords Justice Keene, Thomas, Wall): 24 August 2007
The appellant father (F) appealed against a decision of a judge to grant the first respondent mother (M) residency of their four children during the school week for the duration of the school term. F and M were the parents of four children aged between two and 12 years old.
M had a prolonged history of amphetamine addiction. In family proceedings, a judge had been required to determine parental responsibility and residency of the children. The judge had before her reports from a jointly instructed psychologist, M's psychiatrist, and a key social worker. In addition, there were the results from hair, saliva and urine tests conducted on M to show her drug usage. The reports strongly suggested that all four children should reside with the father, and the tests indicated that while M had not tested positive for drug use at the time of the hearing, her drug use had continued prior to that hearing. M gave evidence that she no longer used drugs. F was granted parental responsibility and shared residency of the children. As part of the residence order, M was granted residency of all four children for the school week during the term. F contended that the expert evidence had been dismissed without sufficient analysis or reasoning, and that inappropriate weight had been attached to M's evidence.
Held, it was axiomatic that where a judge in the exercise of her discretion departed from clear expert opinions she had to give reasons for her departure. In this case, the judge had failed to explain why she had departed from the clear expert evidence that strongly suggested that the judge should adopt the opposite course to that which she had in fact taken. Her failure to do so vitiated her conclusions. Moreover, the judge had attached a disproportionate amount of weight to M's evidence and had adapted the expert evidence around M's evidence. Accordingly, the judge's decision could not stand and the matter was remitted to a different judge for redetermination.
Appeal allowed.
Jeremy Hall for the appellant; Philip Newton for the first respondent; the joint second respondents appeared in person.
Extradition
Delay - extradition requests - fugitive offenders - inhuman or degrading treatment or punishment - oppression - prisons - time - Trinidad and Tobago
(1) Goodyer (2) Gomes v Trinidad & Tobago: QBD (Admin) (Lord Justice Sedley, Mr Justice Nelson): 22 August 2007
The appellants (G and X), in conjoined appeals, appealed against decisions that it would not be unjust or oppressive to return them to Trinidad for criminal trials, and that their extradition would be compatible with article 3 of the European Convention on Human Rights. G was a citizen of the UK and X was a citizen of Trinidad and Tobago.
They had both been arrested and remanded in custody in Trinidad and Tobago for drug offences. G was additionally charged with firearms offences. Evidence suggested that prison conditions in which they had been kept were appalling. After about two months, G was released on bail and returned to the UK. X was discharged in respect of the drug offences and was released on bail for the firearms charges after one year and seven months. Although the prosecution indicated that it would appeal, X left the country. The appeal succeeded in X's absence. Both G and X asserted that at the time they believed that they had been discharged. G maintained that since his return to the UK he had lived openly at a fixed address.
More than three years after G's release on bail, the respondent government (T) of Trinidad and Tobago, which had lost his case file, located it and sought G's extradition. T admitted the culpability of its own delay in locating G's case file. X was found and arrested after about six years and five months following his release on bail. The issues were whether by virtue of sections 79(1)(c) and 82 of the Extradition Act 2003 it would be unjust or oppressive by reason of the passage of time to return either G or X to Trinidad for trial; and if they were to be returned, their prison conditions would be such as to make their extradition incompatible with article 3, contrary to section 87 of the Act.
Held, in X's case there was no question of unwarranted delay on the part of T in tracing him. The only question that remained was whether he had left in breach of bail or freely. Only if X had left Trinidad lawfully, or possibly in the reasonable and honest belief that he was free to go, could he begin to rely on the delay on T's part in requesting extradition, Kakis v Cyprus [1978] 1 WLR 779 considered. G's case was arguably stronger because T had admitted its failure to seek him much earlier. Assuming that G had breached his bail conditions, he could legitimately argue that if T had looked for him, at the time, he would have been found. Section 82 required the judge to give weight to the effects of the passage of time, in particular any consequent injustice or oppression. What Kakis did was interpose a jurisprudential cut-off for so long as the passage of time was of the accused person's making. Whether the concurrent fault of the requesting state was regarded as keeping the chain of causation intact, albeit attenuated, or was regarded as an exceptional circumstance, it was wrong to leave it out of account, R v Governor of Brixton Prison, ex parte Osman (No4) [1992] 1 All ER 579, La Torre v Italy [2007] EWHC 1370 (Admin), and Croatia v Spanovic [2007] EWHC 1770 (Admin) considered. There would also be asymmetry between taking the cause of delay into account to the accused person's detriment when it was his fault, but leaving it out of account when it was the requesting state's fault. It was more appropriate to regard the respective faults of the accused and the state as merging at the point where it was no longer reasonable for the requesting state not to have located the accused. From that point, it became increasingly likely that the sense of security engendered by state inaction would render extradition oppressive. The want of G's concealment following his return was also an important factor. Furthermore, the evidence of conditions each appellant had to endure while in custody was admissible as part of his case on oppression. There was evidence capable of supporting a case under article 3 in respect of prison conditions in the maximum security facility in Trinidad. Pursuant to the Act, the court directed that the questions that had been decided at the extradition hearing be decided again.
Judgment accordingly.
E Fitzgerald QC, B Cooper (instructed by Kaim Todner and IBB) for the first and second appellants; M Summers, A Riley (instructed by the CPS) for the respondent.
Road Traffic
Breath samples - breath tests - driving while over the limit - type approval - breathalyser machine
Clive Martin Breckon v Director of Public Prosecutions: DC (Lord Justice Sedley, Mr Justice Nelson): 22 August 2007
The appellant (B) appealed by way of case stated against a decision of a district judge sitting in a magistrates' court to convict him for driving with alcohol concentration above the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988. B had been required by the police to provide a roadside breath test, which had proved positive. A further breath test at the police station by means of a breathalyser machine also proved positive. At trial, B contended that the machine used was not an approved device. In particular, B asserted that the relevant guidance relating to approved devices provided that the gas delivery system used in an approved device should comprise an automatic change-over valve, whereas the device in question had a manual change-over valve. B also asserted that having regard to section15(2) of the Road Traffic Offenders Act 1988 the Crown's failure to adduce evidence of the proportion of alcohol obtained from the roadside breath test was fatal to the prosecution case. The district judge rejected those arguments and convicted B of driving over the limit. The questions posed for the opinion of the High Court were whether the district judge had erred in holding that the machine used was an approved device; the prosecutor did not have to adduce the actual amount, in figures, of the alcohol level revealed by the breath test carried out at the roadside.
Held, the machine used was an approved device. A device that was approved was set out in the schedule to the approval document for breathalyser machines. There was no purpose in including in the approval a substantial number of details, which might be irrelevant to the essential and efficient functioning of a machine, yet every one of which had to be complied with for the device to be properly approved. There had to be room to make sensible modifications without having to seek a new approval every time such a modification was made. The test was whether after such modification or alteration the machine remained one to which the description in the schedule still properly applied. If it did not then the device was no longer an approved device; but if the description did still properly apply to the device, it remained an approved device even though modifications or alterations had been made. Applying that test, the supply of a device with a manual change-over valve, such as the device in this case, rather than an automatic change-over valve when the machine had two cylinders, did not render it no longer an approved device, Richardson v DPP [2003] EWHC 359 (Admin) considered. It had been established by authority that there was no statutory obligation on the Crown to adduce material such as the actual figures recorded during the administration of a roadside breath test. Section 15(2) of the Act did not apply to preliminary breath tests. The purpose of the preliminary test was to obtain an indication of whether the proportion of alcohol was likely to exceed the prescribed limit. It was not to determine whether the limit had in fact been exceeded, which was the function of specimens taken for analysis under section 7 of the Act, Smith v DPP [2007] EWHC 100 (Admin), (2007) 171 JP 321 applied.
Appeal dismissed.
Nigel Ley (instructed by Vickers & Co) for the appellant; Alan Blake (instructed by CPS (Buckinghamshire)) for the respondent.
Property
Administration of estates - beneficial interests -co-ownership - contributions - intention - joint tenancies - proprietary estoppel
(1) Jennifer Adekunle (2) Keble Ben Ritchie (administrators of the estate of Adassa Veronica Ritchie, deceased) v Richard Christopher Ritchie: CC (Leeds) (John Behrens QC): 17 August 2007
The approach in Stack v Dowden [2007] UKHL 17, [2007] 2 WLR 831 that beneficial ownership of a property should follow the legal ownership, unless there were very unusual circumstances, was not limited to cohabiting couples living together in a platonic or sexual relationship, and applied where a property had been purchased by a mother and son. In the very unusual circumstances, it could not be said that a property, which had been conveyed into the joint names of a mother and son without express declaration of their respective beneficial interests, was held by them as beneficial joint tenants.
The claimant administrators (J) of the estate, which comprised a property, of their deceased mother (M), sought an order for sale so that the estate could be divided between M's ten children, including the defendant (R). M had been unemployed and had lived in rented local authority accommodation with her son, R, until she bought the property with his help at a discounted price. The balance was raised by way of a mortgage and both R and M were jointly and severally liable under the mortgage. The transfer document described both R and M as transferees but there was no express declaration of their beneficial interests. R later married and moved out. However, after his marriage broke down, R returned to the property and remained there until M's death. Mortgage payments were made but there were disputes as to the extent to which R contributed to, or paid, them. A few months after R's return, the first claimant took control of M's finances and the mortgage was paid out of a joint account containing M's money. After M's death, R paid the mortgage and other outgoings. According to R, M had encouraged him to purchase the property and had stated that eventually it would be his. Evidence from a solicitor suggested that M had wished to leave her estate equally to the first claimant and R. R contended that he and M held the property as beneficial joint tenants and, therefore, he was entitled to it by the doctrine of survivorship. Alternatively, R argued that he had a beneficial interest in the property or propriety estoppel to enable him to remain in the property. J submitted that a new approach that beneficial ownership of a property should follow the legal ownership unless there were very unusual circumstances, as set out in Stack v Dowden [2007] UKHL 17, [2007] 2 WLR 831, only applied in domestic situations where there was some sexual relationship between the parties.
Held, the approach adopted in Stack was not limited to cohabiting couples living together in a platonic or sexual relationship. This case related to a domestic relationship between mother and son and should be decided in accordance with the new approach. However, the circumstances of this case were unusual, which justified a departure from the presumption of a beneficial joint tenancy. The context of the acquisition of the property was very different from that of the normal cohabiting couple. It was the purchase of a local authority house by a tenant, with the benefit of a generous discount, in a situation where the tenant was not in a position to fund the mortgage without the assistance from her son who was also living at the property. That was the reason it was purchased in joint names. The primary purpose of the acquisition was to provide a home for M. The parties' finances were also separate. Furthermore, M had nine other children and she had been on good terms with them. There was no reason to believe that she would have wished the whole of her estate to pass to R. In the circumstances, the parties did not intend their shares in the property to be equal and they did not intend a beneficial joint tenancy with the right of survivorship, Stack applied. The fact that the property was conveyed into joint names, that R was jointly and severally liable under the mortgage, that he was occupying the property at the time of the acquisition, and that he contributed to the mortgage led to the conclusion that it was intended by the parties that R should have a beneficial interest in the property. However, it was plain that R's financial contribution was significantly less than that of M. The discount introduced by M was slightly more than 50 per cent of the purchase price. The parties had intended that R should have a one-third beneficial interest in the property. As to proprietary estoppel, there was no evidence that M had made the alleged representations. It was necessary to balance the wish of the administrators to sell the property for the benefit of the estate and the wish of R to live there. If R were to remain, none of the other beneficiaries would in effect receive any benefit from the estate. In those circumstances, it was appropriate to make an order for sale but to postpone it for six months.
Judgment for claimant.
Tim Hirst (instructed by Cadmans (Cleckheaton)) for the claimants; Simon Stevenson (instructed by Read Dunn Connell (Bradford)) for the defendants.
Insolvency
Administration orders - creditors - cross-claims - debts - discretion - fees - jurisdiction - legal services - licences - transactions at an undervalue - winding-up petitions
Hammonds (a firm) v Pro-Fit USA Ltd: ChD (Companies Ct) (Mr Justice Warren): 17 August 2007
The applicant solicitors (H) applied for an administration order in relation to the respondent company (U).
U owned intellectual property rights, including US patents, relating to the design and use of fusible interlining, strips of fabric that were used in waistbands and other parts of garments to provide strength and support and to improve appearance.
The shares in U were held by a holding company, owned and controlled by family interests, and by an outside investor. H had been instructed by U in relation to a dispute between U and a US corporation (T), to which U had granted a licence in respect of certain intellectual property rights to enable T to make waistbands and certain related items, and to sub-license others to do so.
H claimed to be owed £556,450 in respect of outstanding invoices and unbilled work in progress. The invoices were more than a year old. U had negotiated with H and others with a view to restructuring its debts to facilitate repayment. The negotiations broke down and H indicated that it would have no option other than to invoke some sort of insolvency process. U then claimed that H had given negligent advice that would result in a set-off or damages of an amount in excess of the fees owing to H. H submitted that during the repayment negotiations U had granted a licence of certain intellectual property rights to another family company at a substantial undervalue, thereby demonstrating the need for the involvement of an independent office-holder through the mechanism of administration; U was unable to pay its debts as they fell due and the cross-claim was spurious; even if there was a genuine cross-claim, the court should make an administration order as a matter of discretion. U argued that the established practice in relation to winding-up petitions where there was a disputed debt or cross-claim applied or should be adopted in relation to administration applications.
Held, the established practice in relation to winding-up petitions where there was a disputed debt or cross-claim did not apply and should not be applied to administration applications. Given the different natures of the procedures, there was no reason for importing into administration the practices developed in relation to winding-up, MTI Trading Systems Ltd (In Administration), Re [1998] BCC 400 considered. There was nothing in the context of administration orders to suggest that the court had no option but to refuse to make such an order, save in exceptional circumstances, when facts arose that indicated that the applicant might not fall within the classes mentioned in paragraph 12(1) of schedule B1 to the Insolvency Act 1986 because his debt was disputed or where there was a cross-claim. In particular, in the case of a cross-claim where there was no argument about jurisdiction, it might be clear that an administration order would be desirable and there would then be no reason for requiring a creditor, who clearly had standing to make an application, to defeat the cross-claim as a pre-condition of obtaining an order. Furthermore, a person had a good arguable case that debt of sufficient amount was owing to him was a 'creditor' within paragraph12(1)(c) of schedule B1 and could make an application for an administration order. Whether to make an order was then a matter for the court's discretion. The court could only make an administration order if it was satisfied under paragraph 11 (a) of schedule B1 that the company was or was likely to become unable to pay its debts as defined in section 123 of the Act: 'likely' meant 'more probable than not', Highberry Ltd v Colt Telecom Group Plc (No2) [2002] EWHC 2815 (Ch), [2003] BPIR 324 applied. It also had to be 'reasonably likely' under paragraph11(b) that the purpose of the administration would be achieved, meaning that there was a real prospect of achieving the purpose, Redman Construction Ltd, Re applied. The purpose was the effecting of the objectives set out in paragraph 3(1) of schedule B1 in the order of priority there laid down. On the evidence, U was or was likely to become unable to pay its debts as they fell due. There was also a real prospect of the administrator achieving the objectives of administration. The most important factor in the exercise of the discretion to make an administration order was the licence agreement with the associated company. There was a substantial argument that that was a transaction at an undervalue which should be investigated by an administrator. As a matter of discretion, the court would make the order sought, subject to giving U the opportunity to obtain a surrender of the licence if it could do so on proper terms.
Judgment accordingly.
Gabriel Moss QC, Hilary Stonefrost (instructed by Hammonds) for the applicant; Andrew Sutcliffe QC (instructed by Gorvins) for the respondent.
Human Rights
Electronic monitoring - home detention curfew - reasonableness - release on licence - return to custody - right to liberty and security
R (on the application of Benson) v Secretary of State for Justice: QBD (Admin) (Mr Justice Collins): 20 August 2007
The claimant prisoner (B) applied for judicial review of the defendant secretary of state's decision to refuse his appeal against the secretary of state's earlier decision to revoke his release on licence and return him to custody.
B had been sentenced to a term of 12 months' imprisonment following his conviction for assault occasioning actual bodily harm. After serving a period of three months' imprisonment, he was released on conditional licence. B was required to wear a personal identification device (tag) and he was subject to a home detention curfew, which specified that he had to remain at a specified address at night. The security company responsible for the monitoring of B's presence by means of his tag was only able to visit the address to check the functionality of the tag between the hours of 20.30 to 00.00, or at any time where there had been an alleged breach of B's curfew conditions. On a particular night, the security company received a report that the tag had been tampered with, and following a number of telephone calls to B, the company informed him that one of its employees would visit B's address. B asserted that he waited for the visit, but as no one had arrived by 00.00 he went to sleep. Shortly before 01.00 an employee of the security company visited B's address but was unable to gain entry. On a separate night, another unsuccessful attempt was made to effect entry. The secretary of state decided, having regard to the inability of the security company to access B's address so as to check the monitoring equipment, that it was appropriate to revoke B's release on licence and return him to custody. B unsuccessfully appealed against that decision to the Ministry of Justice on the basis that he had been unaware that the security company had tried to gain access to his address, and that the doorbell had not been working. B contended that the appeal system, contained in section 255(2) of the Criminal Justice Act 2003, against a decision to revoke a prisoner's licence and recall him to prison was incompatible with article 5(4) of the European Convention on Human Rights as there was no independent assessment of the revoke and recall decision; his appeal against the revoke and recall decision had been procedurally unfair as he was not given a proper opportunity to meet the allegations against him.
Held, section 255(2) of the Act was compatible with article 5(4) of the convention and B had no right to have an independent assessment of the decision to revoke his licence and recall him to prison. It was clear from the authorities that if a prisoner were sentenced to imprisonment for the public protection with a fixed term and was released on licence but later recalled to prison that article 5(4) would apply to such a recall decision. However, where a prisoner was still serving his determinate sentence, article 5.(4) was not applicable as it conferred no right to have a lawful sentence imposed by a court reconsidered. Release on conditional licence subject to monitoring was clearly capable of being regarded as a deprivation of liberty and it was simply one of the manners in which a sentence could be served, R (on the application of Smith) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350, and R (on the application of Johnson) v Secretary of State for the Home Department [2007] EWCA Civ 427, [2007] 1 WLR 1990 considered. The secretary of state was under a common law duty to act reasonably and fairly in considering B's appeal against the revoke and recall decision. What was reasonable and fair depended on the circumstances of a particular case. Conditions of access to the property of a person monitored by means of a tag had to be reasonable, and it could not be said that it was unreasonable to allow access to a property of a tagged individual at night if it was suspected that the tag was being interfered with. It was, however, unreasonable to regard the failure of a tagged individual to allow access as a breach of his licence conditions where such an individual had been unaware of an attempt to gain access.
Furthermore, to state as a broad proposition that whenever access to the property of a tagged individual was attempted and not achieved a breach of licence conditions occurred was unreasonable. The statutory scheme for the recall of a prisoner under the Act did not demand that a prisoner purportedly in breach of his licence conditions had to be recalled but allowed the secretary of state to exercise his discretion. In the exercise of that discretion, the secretary of state had to see if there was any fault on behalf of the company monitoring the tag or the tag itself. In this case, B has asserted that he was unaware that anyone had tried to gain access to his property and that assertion had not been properly considered. Moreover, an individual such as B had to know the allegations against him of conduct amounting to breach of his licence conditions in sufficient detail, so that he could provide meaningful representation to the secretary of state on any appeal against a revoke and recall decision - and that had not been done in this case. Accordingly, in all the circumstances, there was no doubt that the procedure adopted by the secretary of state had not produced fairness for B, and the appeal would be allowed and remitted for a fresh consideration.
Application granted.
Benjamin Myers (instructed by Belshalls) for the claimant; Lisa Busch (instructed by the Treasury Solicitor) for the defendant.
Contracts
Agreements - aircraft - breach of contract - diminution in value - measure of damages - mediation - repair covenants
Sunrock Aircraft Corporation Ltd v Scandinavian Airlines System Denmark-Norway-Sweden: CA (Civ Div) (Lords Justice Ward, Thomas, Wall): 24 August 2007
The appellant airline (Y) appealed against a decision ([2006] EWHC 2834 (Comm)) allowing the claim of the respondent (X) for damages for breach of contract.
Y had entered into a sale-and-leaseback arrangement with X for two aircraft. Y had proposed to redeliver one of the aircraft, but a dispute had arisen over the obligation in the lease for Y to make adjustment payments based on the 'maintenance status' of the aircraft.
A central aspect of the dispute was whether Y was liable to pay for the diminution in value of the 'life limited parts' (LLPs) of the engine. LLPs formed a significant part of the cost of engines, and as their lifespan was finite and could not be extended by maintenance, their value depreciated over time.
X also contended that Y had breached its obligation to redeliver the aircraft without 'scab patches' on the fuselage, and that Y had breached an agreement to have that dispute determined by an expert. The judge held that Y was liable for the diminution in value of the LLPs and that, although X had suffered no loss as a result of the failure to repair the scab patches, he awarded damages in the amount of the costs of repair on the basis that a duly appointed expert would have made such an award.
Held, the lease plainly did not oblige Y to pay to X a sum calculated by reference to the proportion of the life of the LLPs used during the period of the lease. It was clear from the wording of the lease that the obligation of the parties was to make an adjustment for the difference in 'maintenance status' of the engine by reference to a comparison between what was required at the next engine overhaul as at delivery and redelivery, and the difference in the length of time as at delivery and redelivery to that overhaul. Although no overhaul would take place at redelivery, the work to be done at the next overhaul was to be costed. Apart from servicing the LLPs, none would be replaced unless they had been damaged or they had reached the expiry of their lifespan, and costing their usage would not have been done on an overhaul. 'Maintenance' of the LLPs could not extend to their notional replacement. Such a construction also gave the word maintenance its ordinary meaning.
X had suffered no loss as a result of Y's failure to repair the scab patches, and an expert could only have awarded damages on a wrong view of the law. On the evidence before the judge, there was no basis on which he could have reached the conclusion that an expert would, once the law had been explained to him, have awarded damages on an incorrect basis.
Appeal allowed.
Philip Shepherd QC, Bajul Shah (instructed by Norton Rose) for the appellant; Akhil Shah (instructed by Simmons & Simmons) for the respondent.
No comments yet