Arbitration
Appointments - arbitral tribunals - arbitration agreements
Sumuka Ltd v Commonwealth Secretariat: CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lords Justice Waller (V-P), Sedley): 15 November 2007
The appellant company (S) appealed against a decision ([2007] EWHC 188 (Comm), [2007] 1 Lloyd's Rep 370) dismissing its challenge to an arbitration award on grounds that the arbitrators lacked substantive jurisdiction. S's predecessor in title had entered into a contract with the respondent Commonwealth Secretariat to create a prototype website for the government of Namibia. The contract included a term providing for disputes to be referred to the Commonwealth Secretariat Arbitral Tribunal for settlement by arbitration in accordance with the tribunal's statute, which formed part of the contract. A dispute arose as to whether title to the prototype website had passed to the secretariat or had remained in S's predecessor. The dispute was referred to the tribunal.
A tribunal of three, headed by the president (C), made an award in favour of the secretariat. It was accepted that C had not been appointed as a member of the panel or as president in accordance with the appointment procedure in the relevant statute, which required consultation with the member states. The judge held that C's appointment as a member and president was nevertheless effective by virtue of article IV(7) of the statute, which provided for the president to hold office until a successor was appointed. The secretariat and tribunal submitted that the procedural failure was of a kind that did not lead to an invalid appointment, or had been cured or was something that S was precluded from relying on by section 73 of the Arbitration Act 1996.
Held, a party contracting with the secretariat, like S, was entitled to have the dispute resolved by a panel appointed in accordance with the statute. Article IV(7) was not intended to allow a long-term holding over but, if a holding over occurred, article IV(7) would apply to preserve a president as president until another was appointed. But it could only have that effect on a president validly appointed. The appointment procedure existed at least in part for the protection of parties to arbitrations with the secretariat. The sole purpose of the consultation with governments was not to ensure that the tribunal would consist of arbitrators appointed on a regionally representative basis. In circumstances in which one of the parties to contemplated arbitrations was appointing the potential members of future arbitration panels, the statute should be construed as requiring consultation with Commonwealth governments to ensure, among other things, the impartiality and independence of the arbitrators on the panel. Thus S was entitled to a panel consisting of arbitrators who had been appointed only after such consultation. Any failure to consult had not been cured. The de facto concept did not apply. There was no room in the arbitration field for the common law doctrine which, in some circumstances, validated the acts of an apparent and reputed judge. Even with its statutory foundation, the secretariat's arbitral tribunal was not a court of law or otherwise part of the system of public justice. It was in essence, like any other arbitral tribunal, a contractual arrangement, and the validity of things purportedly done in setting it up was to be gauged by the contractual terms, wherever they were found, as construed by the courts. They left no space in which the common law could make good a want of power. It would be wrong to construe section 73 so as to hold that S could, with reasonable diligence, have discovered facts that it neither knew nor believed nor had grounds to suspect. S was entitled to rely on the fact that the secretariat would not be suggesting a particular tribunal unless the procedures had been complied with. Therefore, the award had to be set aside and the matter remitted to a differently constituted tribunal.
Appeal allowed.
Anthony Speaight QC, Kate Livesey (instructed by the in-house solicitor) for the appellant; Colin Nicholls QC, Tom Poole (instructed by Speechly Bircham) for the respondent; Paul Letman (instructed by Charles Russell) for the intervener.
Administration of Justice
Bias - conduct - judges - recusal
Wendy Ann El Farargy v Nael Mahmoud El Farargy, McKellar Holdings Ltd, Sheikh Khalid Ben Abdullah Rashid Al Fawaz, Wena Hotels Ltd: CA (Civ Div) (Lords Justice Ward, Mummery, Wilson): 15 November 2007
The appellant (S), a Saudi sheikh, appealed against a decision of Singer J, refusing an application to recuse himself on the ground that comments made during the course of a pre-trial review in ancillary relief proceedings betrayed apparent bias towards S. S was involved in the proceedings because he claimed to be the beneficial owner of property which a wife claimed was owned by her and her husband (H).
H supported S's claim. Singer J became involved in the case in December 2004. He presided over a pre-trial review and a directions hearing in 2006. In those hearings, he made several comments which led to the application that he recuse himself. He had commented that he had 'formed a view about [the] case' which was 'near conviction', namely that H and S had agreed to present a false case and were running a campaign to make sure the wife was put at the maximum disadvantage. He also referred to S departing 'on his flying carpet', to 'every grain of sand [being] sifted', to the case being 'a bit gelatinous... like Turkish Delight', and to a 'relatively fast-free time of the year'. S submitted that there was a real possibility that Singer J had formed so strong a view that H and S were party to an improper combination or campaign, so as to throw doubt on his ability to try the issues with an objective, open judicial mind. S also argued that the judge's remarks would cause a fair-minded and informed observer to conclude that there was a real possibility that he was mocking S for his status as a sheikh, his Saudi nationality, his Arab ethnic origins, his Muslim faith, or some or all of those elements.
Held, Singer J had been right not to recuse himself on the basis that he had apparently already closed his mind. There were times in any trial and in any pre-trial review where a judge was entitled to express a preliminary view. He had already dealt with the matter on many occasions for many days, and, in the light of H's appalling forensic behaviour, no observer could have been surprised that Singer J had formed a 'prima facie' view, nor even that it was 'near conviction'. He had expressed himself in strong terms, but he had not overstepped the mark, Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, and Locabail (UK) Ltd v Bayfield Properties Ltd (Leave to Appeal) [2000] QB 451 applied. The jokes and comments made by Singer J. were not just 'colourful language', but were mocking and disparaging of S for either his status as a sheikh, his Saudi nationality, his ethnic origins, his Muslim faith, or some or all of those elements. The jokes would be perceived to be racially offensive, even though that was not the intention. They were likely to cause offence and result in a perception of unfairness. They gave an appearance to the fair-minded and informed observer that there was a real possibility that Singer J would carry into his judgment the scorn and contempt the words conveyed. (Per curiam) It was invidious for a judge to sit in judgement on his own conduct in a case like present instant case, but in many cases there would be no option but that the trial judge deal with it himself. If the circumstances permitted, an informal approach should first be made to the judge, making the complaint and inviting recusal. A judge could, with honour, totally deny the complaint but still pass the case to a colleague. If he did not feel able to do so, then it might be preferable, if it were possible to arrange it, to have another judge take the decision, for where the appearance of justice was at stake it was better that justice be done independently rather than require the judge to sit in judgement of his own behaviour.
Appeal allowed.
John Randall QC, Huw Jones (instructed by Wragge & Co) for the appellant; Philip Cayford QC, Victoria Domenge (CKFT Solicitors) for the respondent.
Civil Procedure
Abuse of process - findings of fact - professional negligence - solicitors - striking out
Taylor Walton (a firm) v David Eric Laing: CA (Civ Div) (Lords Justice Buxton, Laws, Moses):
15 November 2007
The appellant firm of solicitors (T) appealed against a decision ([2007] EWHC 196 (QB)) refusing to strike out as an abuse of process a claim for negligence brought by the respondent (L) against them.
L had entered into oral agreements with a third party (X), whereby X invested a substantial sum of money in a development project promoted by L. A solicitor at T's firm was instructed by X in relation to the agreements and drafted documentation intended to reflect what had been agreed. A dispute arose between L and X over X's entitlement under the agreements. The trial judge found in favour of X. L did not appeal against that decision.
L brought the present claim, arguing that the trial judge's findings had been wrong and that L had been exposed to the risk of such adverse findings because of T's breach of retainer, breach of duty, and negligence in preparing the written agreements. T submitted that, since the issue of whether there was an abuse of process was not one for the discretion of the judge, in any appeal the court should start again and decide whether the judge had been right or wrong.
L argued that the requirement in Phosphate Sewage Co Ltd v Molleson (Res Judicata) (1878-79) LR 4 App Cas 801 for a second claim to be based on new evidence was irrelevant or inconclusive where the second claim was not between the same parties. L sought to rely on Arthur JS Hall & Co v Simons (2002) 1 AC 615. He accepted that the trial judge's decision was binding, and argued that he was not seeking to reverse the decision, but to recover from T the cost to him of the decision.
Held, in reviewing the judge's decision, the court was not limited to considering whether the facts fell within a wide ambit of discretion. However, the issue, although not one of discretion, was one of judgement in determining whether the duty to strike out for abuse of process arose. In reviewing such an exercise of judgement, the court would always give considerable weight to the judge's opinion, and particularly so when he was a commercial judge of many years' experience, Hunter v Chief Constable of the West Midlands [1982] AC 529 considered. Every criticism of the trial judge's judgment made in the present court and to the judge below could have been made directly to the trial judge, and could have been deployed in an appeal against the trial judge's decision. L had had every opportunity during the trial to raise the issue of the allegedly inadequate drafting. It would bring the administration of justice into disrepute if L were to be permitted in the present proceedings to advance exactly the same case as was tried and rejected by the trial judge.
The present case was different from Hall. To succeed in the new claim, L had to demonstrate not only that the judge's decision was wrong, but that it was wrong because it wrongly assessed the very matters that were relied on in support of the new claim. That was an abusive relitigation of the judge's decision not by appeal but in collateral proceedings, and in substance, if not strictly in form, it fell foul of Phosphate Sewage. Phosphate Sewage applied and Hall considered. The judge below had not given sufficient weight to the central factor that created an abuse of process, namely that the proceedings were in substance a complete relitigation of the decision of the trial judge.
Appeal allowed.
Michael Pooles QC, William Flenley (instructed by Mills & Reeve) for the appellant; Jonathan Marks QC (instructed by McBride Wilson & Co) for the respondent.
Criminal
Jury directions - no case to answer - possession of offensive weapons - decision for reasonable jury
Prosecution right of appeal (No 23 of 2007) sub nom R v R: CA (Crim Div) (Lord Justice Laws, Mr Justice Mackay, Mr Justice Lloyd Jones): 15 November 2007
The Crown applied for leave to appeal against a ruling that had the effect of terminating proceedings against the defendant (R).
R was arrested in connection with an incident involving an assault by another man on a third party. R was exonerated but at the police station officers recovered a pair of 'sand gloves' from his pockets and R was subsequently charged. R asserted that he used the gloves to keep his hands warm. The Crown proceeded on the basis that the gloves were an offensive weapon per se and not on an alternative basis that they were carried with the intention of causing injury.
The Crown adduced evidence of an advert on a website advertising the gloves as being suitable for self-defence, that they contained powdered lead, and that purchasers should check the legality of such gloves in their particular jurisdiction. The Crown asserted that it was sufficient to demonstrate that the gloves had been adapted for use as a weapon and that it was a reasonable inference for the jury to make. At the close of the Crown's evidence, the judge withdrew the case from the jury, stating that the gloves were not weapons per se and that, despite the evidence adduced by the Crown, they were nevertheless gloves. The Crown submitted that the judge erred in concluding that there was no basis on which the gloves could be considered an offensive weapon since that was a decision for the jury.
Held, the issue in the case was whether the Crown could establish that the gloves were made or adapted for use as a weapon. The court had had the benefit of examining the gloves, and it was noticeable that they were considerably heavy. They were consistent in nature with gloves that were made for protecting hands and knuckles, such as those used by motorcycle riders. There was material in the evidence before the jury as to the nature of the gloves, and the website advertising the gloves clearly acknowledged their potential purpose. It was an inference that a reasonable jury was entitled to make and it was up to the jury to decide if the gloves were an offensive weapon. A judge should only halt proceedings where a jury was in danger of making an unreasonable inference. Accordingly, the judge had erred in withdrawing the case from the jury, and it was in the interests of justice to order a fresh trial.
Appeal allowed.
R Christie for the Crown; L Kazakos for the defendant.
Sentencing
Child pornography offences - mitigation - sentence length
R v Christopher Langham: CA (Crim Div) (Lord Justice Gage, Mr Justice Openshaw, Dame Heather Steel J DBE): 14 November 2007
The appellant (L) appealed against a sentence of 10 months' imprisonment imposed following his conviction for 15 offences of making an indecent photograph of a child.
Following the receipt of information from US police officers, L's home had been searched and his computer seized. The computer contained various images of child pornography at all levels on the scale used to measure the seriousness of images. Lists from the computer also demonstrated that L had made unsuccessful attempts to open other files. L asserted that he had downloaded the images as part of research that he was conducting into paedophiles for a television programme he was writing. The sentencing judge had various reports before him and stated that whatever L's reasons for downloading the material, he had downloaded it and had paid to do so. The judge did take account of mitigation, including L's work with those suffering alcohol problems and his family life. L submitted that the judge sentenced him on an incorrect factual basis as he had not paid for the downloaded material that was the subject of the counts on the indictment; the sentence imposed was manifestly excessive as the judge appeared to have accepted that his motivation for downloading the images was not one of sexual gratification; although the sentence imposed was within the relevant sentencing guidelines, his case was unique since he had been conducting research for a television programme and the sentence was therefore wrong in principle.
Held, L's argument that the judge sentenced him on an incorrect factual basis was not impressive. There was evidence put forward at the trial to suggest that L had used his credit card to access other websites. It did not matter whether material involving child pornography was paid for or not. As long as a market for child pornography remained, children would continue to be exploited. The judge's sentencing remarks had to be considered with care. He had stated that 'there was nothing in the papers to indicate that L was a sexual predator in the ordinary meaning of the words' and it was unclear what he had meant by that. Nowhere was it accepted by the judge that L had downloaded the material for research, but at the same time nor had he rejected the possibility. L's explanation for his making of the photographs was highly improbable, but was not an issue the court could make a robust decision upon. The real mischief was the horrifying sexual abuse inflicted on the children contained in the images and the images being downloaded only served to encourage the continuance of that abuse, whatever the motivation of the recipient. The fact that L might have downloaded the images for research purposes was of minimal mitigation and was not sufficient to bring the case into the realms of an exceptional case warranting a non-custodial sentence. However, in light of the mitigation available to L, including his work with people with alcohol-related illness and his family life, a sentence of six months' imprisonment was appropriate.
Appeal allowed.
D R B Whitehouse QC For the appellant; D Charles for the Crown.
Confiscation orders - consent - false instruments - jurisdiction - obtaining money transfers by deception - reliance on erroneous legal advice
R v Suzanne Bailey: CA (Crim Div) (Lord Justice Laws, Mr Justice Mackay, Mr Justice Lloyd Jones): 15 November 2007
The appellant (B) appealed against a confiscation order, imposed following her pleas of guilty to three counts of using a false instrument and three counts of obtaining a money transfer by deception. B had been the operator of three small bus companies, and was arrested on suspicion of using forged insurance documents to operate them.
The three counts of obtaining a money transfer by deception concerned over-estimating the amount of fuel used by the buses, resulting in a gross over-estimation of the fuel duty rebate the companies were entitled to. At a confiscation hearing, the benefit obtained by B was calculated to be approximately £626,000. The Crown accepted that B's available realisable assets were significantly less than the benefit obtained, and with B's consent agreed to a confiscation order of £195,315, reflecting the value of B's home and a small piece of land. Following the imposition of the order, B applied to re-open the confiscation proceedings since her legal representative believed he had been wrong to agree to the order, on the basis that he should have called B's husband (H) to give evidence, explaining how their property was owned and the equity in it.
The High Court had no power to change the order other than by granting a certificate of inadequacy under section 83 of the Criminal Justice Act 1988, and the judge rejected the application as he considered it unfair to the Crown to allow B to re-open the proceedings. B submitted that the confiscation order was manifestly excessive, wrong in principle, and equated to a situation where a defendant entered a guilty plea on erroneous legal advice but sought to vacate that plea following conviction.
Held, a better analogy to that submitted by B was the situation where a defendant pleaded guilty to an offence, on the basis that he would be given a non-custodial sentence, but was in fact imprisoned. The present case was an appeal under the Criminal Appeal Act 1968, which provided limited grounds for allowing an appeal. Where the vacation of a plea was considered, the court would have to consider if the relevant conviction was unsafe. The issue in B's case was very different, not least because throughout the confiscation exercise, the burden of proof lay with B. There was, therefore, a dilemma in that if the order stood and H established an interest, B would still be subject to an order for the full amount which she was unable to meet, and would be deprived of her liberty as a consequence. On the other hand, if the order were to be quashed, the matter could not be sent back to the Crown Court for re-assessment, or be replaced with another order as the application for a certificate of inadequacy had already been rejected. Therefore, the only route would be to quash the order but on the face of it that would be an injustice to the Crown. There was no basis on which the order could be said to be manifestly excessive, and the judge had made it clear that the order was for confiscation of funds, not a confiscation of B's home. The order should stand since it was made with B's consent.
Appeal dismissed.
M McKone for the appellant.
No comments yet