ROAD TRAFFIC

Buses - duty of care - collision with pedestrian - requirement to check rear-view mirror

Ahanonu v South East London & Kent Bus Co Ltd: CA (Civ Div) (Lords Justice Laws, Lawrence Collins, Mr Justice Black):

23 January 2008



A judge's conclusion that a bus driver had been negligent when his bus collided with a pedestrian was flawed, as his finding that the driver should have been checking his rear-view mirror, which formed the basis of his decision, imposed upon the driver a counsel of perfection and ignored the reality of the situation.



The appellant bus company appealed against a decision of a judge that one of its drivers (D) had been negligent when his bus collided with the respondent pedestrian (X). D had been following another bus out of a bus station and negotiating a right-angle left-hand turn when X was squashed between the rear end of D's bus and a bollard on the side of the carriageway. The carriageway was enclosed by railings but X had deviated from a pedestrian crossing and walked up behind the bus. The judge concluded that D was negligent, but damages were assessed on the basis of 50 per cent contributory negligence. The judge based his conclusion on, among other things, his finding that D should have checked his rear-view mirror in the seconds leading up to the incident.



Held: The judge's conclusion could not stand. He did not take sufficient account of the fact that X was probably moving quickly at the time of impact, and that there was no reason for D to expect pedestrians to take the dangerous path taken by X. Also, the judge's finding that D should have kept his eye on his rear-view mirror imposed a counsel of perfection upon him and ignored the reality of the situation. On the judge's findings, it would have taken D's constant attention on his rear-view mirror to avoid colliding with X, but that itself would have created a hazard. Buses exiting the station had to queue, and if D had taken his eye off the bus in front of him, there could have been a serious accident. In view of the dangerous actions taken by X and the importance of paying attention to the bus in front, the judge's finding of negligence was flawed.



Appeal allowed.



Colin Mendoza (instructed by David Hurley Associates) for the appellant; Keith Walmsley (instructed by Law Solicitors) for the respondent.





MEDIA & ENTERTAINMENT

Classification - computer games - social impact - violence

R (on the application of British Board of Film Classification) v Video Appeals Committee: QBD (Admin) (Mr Justice Mitting):

24 January 2008



The claimant British Board of Film Classification (BBFC) applied for judicial review of a decision of the defendant committee to allow an appeal against the BBFC's refusal to classify a video game developed by the interested party (R).



The BBFC had declined to classify the video game in question, having described it as depicting unremitting violence towards humans. The committee, in arriving at its decision to allow R's appeal and to classify the game as one that was suitable only for those over the age of 18, made reference to an introductory statement made by a Home Office minister in respect of the Video Recordings Act 1984 section 4A(1). The statement said that there might be some works that the BBFC believed would have such a devastating effect on individuals or on society if they were released, that there should be the possibility of their being refused classification altogether. The committee also made clear its interpretation of the reference to the phrase 'harm that may be caused' in section 4A(1). It held that there must be actual harm as opposed to potential harm.



Held: when the committee observed the comments of the minister as to the devastating effect the release of a video game might have, it was plain that it was laying down the test it intended to apply. In doing so, it was making improper use of parliamentary comments. Further, the committee misunderstood what Parliament was saying. The minister was not laying down a statutory test or even giving guidance as to the interpretation of the statute, but merely giving an example of circumstances where the BBFC might refuse to classify a work. It was not, and had never been, a legal requirement that the BBFC or the committee should determine whether a video game would have a devastating effect on individuals or on society before refusing certification.



Also, with regard to the committee's interpretation of harm, the relevant words of section 4A(1) were plainly directed to harm that might be caused. If Parliament had intended it to be necessary to demonstrate that harm had been caused, then the words 'that may be' could have been omitted. It was self-evident that, in respect of video games that had yet to be released, the committee would have to judge their impact if they were to be released. The task of both the BBFC and the committee was to have special regard to any harm that might, in the future, be caused to potential viewers.



If the final conclusions of the committee had stood alone, it would be difficult to challenge them on the ground of legal error. However, it was inevitable that its conclusions were affected by its previous misdirections in law, namely those in relation to the parliamentary comments and the interpretation of the words 'harm that may be caused'. In those circumstances, the only just method of disposing of the case was to quash the committee's decision and to have the matter remitted.



Application granted.



Andrew Caldecott QC, Ian Helme (instructed by Goodman Derrick) for the claimant, Geoffrey Robertson QC, Guy Vassall-Adams (instructed by Harbottle & Lewis) for the interested party.





IMMIGRATION

Asylum - fresh evidence - human rights - Kosovo - renewed applications

ZT (Kosovo) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Buxton, Sedley): 24 January 2008



The appellant (Z) sought judicial review of the respondent secretary of state's decision not to treat his representations as a fresh application for asylum under rule 353 of the Immigration Rules.



Z was an Ashkali from Kosovo. He had sought asylum in the UK after his wife's Albanian family had attacked him when they discovered his true ethnic origin. His wife and children had joined him in the UK, and he feared that if he returned to Kosovo he would be killed by his wife's family.



The secretary of state had rejected Z's claim and certified it as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002, as Serbia and Montenegro were states in which there was no real risk of persecution. The secretary of state had gone on to conclude that even if there was a risk of persecution, Z was not recognisable as an Ashkali merely by his appearance, he could have relocated to another part of the country and he had not sought protection from the authorities in Kosovo.



The effect of the secretary of state's decision was to block any appeal so long as Z remained in the UK. Z had put forward further material and received a further refusal. Z's first application for permission to apply for judicial review was refused.



Z submitted that the secretary of state had not applied the correct test and his claim was clearly one which was capable of succeeding on appeal to an immigration judge and met the test set out in rule 353. The secretary of state argued that rule 353 and section 94 of the 2002 Act were entirely separate in purpose and effect.



Held: (1) The decision in WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495, [2007] Imm AR 337 was handed down two days after the refusal of Z's application for permission to seek judicial review, and the judge had understandably not applied the test set out in that case. The Home Office was dealing with renewed claims in certified cases in a way which was not lawful. The test was whether the renewed claim was now capable of succeeding before an immigration judge, whatever the Home Office made of the claim. If it was clearly unfounded, it would manifestly not be so capable, but, if it was capable of succeeding then it could not be said to be unfounded.



It made sense that rule 353 and section 94 interlocked in that way because the rule 353 test, by establishing what was a fresh claim, cleared the way for an appeal and the section 94 test, by identifying a hopeless claim, blocked it. However, the two provisions were not simple counterparts, making a decision under one the mirror image of a decision under the other, if, as in the present case, the renewed claim was routinely treated as a continuation of the original claim without first considering whether it was a fresh claim.



(2) The process required by the 2002 Act and the immigration rules where an application had been rejected and then renewed was: (a) the secretary of state needed to consider under rule 353 whether she now accepted the claim. It was clear from the wording and structure of rule 353 that this did not depend on it being a fresh claim within the meaning of the rule: the option of acceptance was untrammelled; (b) if the renewed claim was rejected but contained enough new material to create a realistic prospect of success on appeal, the secretary of state must so decide and her refusal, being a refusal of a fresh claim, could then be appealed; (c) if the secretary of state lawfully decided that it was not a fresh claim, she did not need to consider whether, having rejected it, she should also certify it as clearly unfounded because its rejection was not subject to appeal at all as it was not a fresh claim. It was only, therefore, to a first claim that the process of certification was relevant, including a certified claim which had been varied or added to by a further application while an appeal against refusal was still open or pending.



(3) A renewed claim such as the present one should be considered under rule 353. Applying that rule, the secretary of state should have decided whether now to accept the claim and if she decided to reject it, whether it was nevertheless a fresh and, therefore, appealable claim. If it was, Z would have secured what he wanted, which was an in-country appeal. If it was not, he had no further recourse. Z was accordingly entitled to have the secretary of state's decision quashed, and his renewed application was to be considered by the secretary of state pursuant to rule 353.



Application granted.



Satvinder Juss (instructed by Riaz Khan & Co) for the appellant; Lisa Busch (instructed by the Treasury Solicitor) for the respondent.





INTELLECTUAL PROPERTY

Cause of action estoppel - inventions - patent proceedings - res judicata

Cinpres Gas Injection Ltd v Melea Ltd: CA (Civ Div) (Sir Igor Judge (president of the Queen's Bench), Lords Justice Jacob, Richards): 24 January 2008



The appellant (C) appealed against a decision ([2006] EWHC 2451 (Pat)) that its claim to a patent registered in the name of the respondent (M) failed by operation of the doctrine of res judicata.



C and M were competitors in the plastics moulding industry and the invention of the patent was for a process called the 'spillover' process. The person (H) named in the patent as the inventor had used the process while working as a consultant for C. Later, H went to work for another person (L), who caused him to apply for a patent.



C claimed in proceedings against H and L under section 12 of the Patents Act 1977 that H had made the invention while working for C. H's evidence was that he had made the invention only when later working for L. C's claim failed. The patent application had been assigned to M and the patent was eventually granted to M, a company controlled by L.



Subsequently, H told C that he had perjured himself in the section 12 proceedings and C started entitlement proceedings pursuant to section 37 of the Act. The judge held that the invention was made while H was working for C and that H had perjured himself in the first proceedings; that L did not know that; accordingly, the perjured evidence of H was not to be attributed to L; C's claim to the patent, therefore, failed by operation of the doctrine of res judicata. M submitted that even if the invention was made by H while he was a consultant to C, the contractual arrangements between H and C did not entitle C to apply for a patent for it. C submitted that the judge's finding that L did not know of the invention was unsupportable; H was a part of the litigation team so that his evidence was to be attributed to L; the case was not one of cause of action estoppel but of issue estoppel which involved a more liberal test; the decision in the first proceedings could be set aside by the Bill of Review procedure applicable in equity; H's fraud in the first proceedings should be treated as that also of L; L's title to the patent, and hence M's title, depended on the false evidence of H.



Held: (1) The judge decided that H made the invention while working as a consultant for C and was the actual deviser of it. C did have the right to apply for the patent by virtue of the arrangements between them which made C a successor in title to the invention within the meaning of section 7(2)(c) of the Act. By virtue of the terms of the final agreement between C and H, the invention was information, which H was obliged to keep confidential and which C could do what it liked with, including patenting it. (2) C failed to show that the judge was wrong to find that L was not complicit in H's perjury at the time. (3) It was too late to take the point that H was part of L's litigation team.



(4) There was a cause of action estoppel; both section 12 and section 37 were concerned with the same cause of action, a claim to entitlement to the grant of the patent. (5) It was not open to the court to hold that there was any wider exception to the doctrine of res judicata than the exception for a judgment obtained by the fraud of a party, Boswell v Coaks (No2) [1894] 6 R 167 considered; Re Barrell Enterprises [1973] 1 WLR 19, Arnold v National Westminster Bank Plc (No1) [1991] 2 AC 93 and Re Odyssey (London) Ltd (formerly Sphere Drake Insurance Plc) v OIC Run Off Ltd (formerly Orion Insurance Co Plc) Times, 17 March 2000 applied. The rule was the same whatever the nature of the cause of action. Technicalities about whether a claim was in equity or at common law no longer mattered.



In any event, the bill of review argument failed on the simple ground that the claim was not one in equity. The right to the patent was claimed via a contract, and contractual rights historically were judged by courts of common law, not equity. (6) H's fraud in the first proceedings should be treated as that of L. Both were parties to the first proceedings. H was seeking to justify his claim to be the inventor. L was claiming to be the owner of the right to apply for the patent by virtue of assignment from H. They had a common foe, C, and made common cause against it. One could not succeed without the other. L's claim was much the more valuable commercially, but H had a commercial interest in the patent belonging to L. It would be wrong to say that H was a 'mere witness' in the first proceedings. His fraud by way of perjury was adopted by L and should be regarded as L's. H himself could not resist the earlier judgment being set aside on the ground of his fraud. Given that, the whole judgment was set aside. (7) M's title depended on H's false claims to have made the invention while working for L. That should be treated as within the fraud of the party rule for the purposes of setting aside the previous judgment.



Appeal allowed.



Peter Prescott QC, Jessie Bowhill (instructed by Wragge & Co) for the appellant; Iain Purvis QC, Benet Brandreth (instructed by Nabarro) for the respondent.





PLANNING

Planning appeals - planning policy - residential development

MA Holdings Ltd v (1) R (on the application of George Wimpey UK Ltd) (2) Tewkesbury Borough Council: CA (Civ Div) (Lords Justice Dyson, Lloyd): 24 January 2008



The applicant (M) sought permission to appeal against a decision in proceedings between a housebuilder (W) and a local authority.



M was the owner of a site that was shown in the local plan as allocated for residential development. W was the owner of land that was not allocated for residential development on the plan. W issued proceedings under section 287 of the Town and Country Planning Act 1990 as a party aggrieved by the allocation in the local plan, objecting to the allocation of M's site and another site for residential development.



The judge allowed W's application, holding that the decision to allocate M's site for residential development was irrational, in that the local authority had failed to have regard to the relevant policy guidance and had failed to give adequate reasons for its decision in relation to the allocation of the site. He ordered the parts of the local plan pertaining to the site be quashed.



M wished to appeal and served a notice of appeal. W took a threshold objection that the court had no jurisdiction to allow M to appeal since it was not a party to and took no part in the proceedings before the judge. M submitted that the court had power to grant permission to appeal, although M was not a party in the court below since it was an 'appellant' within the meaning of rule 52.1(3)(d) of the Civil Procedure Rules (CPR).



Held: (1) In the pre-CPR era, the court had jurisdiction to grant leave to appeal to a person adversely affected by the first present decision. Any person could appeal by leave obtained on an ex parte application to the Court of Appeal, if he could by any possibility have been made a party to the action by service. In the pre-CPR era, a person in the position of M could possibly have been made a party to the proceedings at first instance, Warren v Uttlesford DC [1996] COD 262 considered. That would have been sufficient to give the court jurisdiction to grant M leave to appeal in such a case.



(2) The word 'person' in rule 52.1(3)(d) was not qualified by the words 'who was a party to the proceedings in the lower court'. If it had been intended to restrict an 'appellant' to a person who was a party in the lower court, that could have been expressly provided. Giving the language its plain and ordinary interpretation, rule 52.1(3)(d), when interpreted in the light of rule 52.1(3)(e), did not require an appellant to have been a party to the proceedings in the court below. It would be surprising if the position were otherwise.



First, it would mean that the CPR rules as to who might be an appellant would be more restrictive than the corresponding rules in the pre-CPR era. That was inherently unlikely in the light of the overriding objective of enabling the court to deal with cases justly, since it would in the circumstances be unjust to deny M the opportunity of seeking to overturn the judge's decision merely because it was not a party to the proceedings in the court below. Second, a person could be a respondent even if he was not a party to the proceedings in the lower court. It would be surprising if the rules provided that a respondent could seek permission to appeal even if he had not been a party to the proceedings in the court below, but that the appellant could not do so.



(3) It was reasonable for M to assume that the local authority would be likely to seek to appeal and for M to seek to appeal when the local authority did not do so. The judge's decision to quash the relevant parts of the local plan affected M's property interests. If an appeal would have real prospects of success, it would be a real injustice to M to deny it the right of appeal. M was no mere intermeddling busybody. It was irrelevant that M was not a party to the proceedings below. It was likely that an application to be joined would have failed since the local authority was defending the proceedings. That did not mean that an application for permission to appeal should be refused. M's appeal did have a real prospect of success. Therefore, as a matter of discretion, M was given permission to appeal.



Application granted.



Robin Purchas QC, James Neill (instructed by Dechert) for the appellant; Peter Village QC, Andrew Sharland (instructed by Berwin Leighton Paisner) for the first respondent; Zoe Leventhal (for the second respondent).