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2000 YEARBOOK ADMINISTRATIVE LAW
2
EQUITY AND TRUSTS
106
CIVIL LIBERTIES
8
EUROPEAN COMMUNITY LAW
118
CIVIL LITIGATION
23
EVIDENCE
126
COMMERCIAL LAW
30
FAMILY LAW
133
CONSTITUTIONAL LAW
36
INTELLECTUAL PROPERTY LAW
140
CONTRACT LAW
49
INTERNATIONAL TRADE LAW
147
CRIMINAL LAW
61
JURISPRUDENCE
159
CRIMINAL LITIGATION
70
LAND LAW
169
EMPLOYMENT LAW
79
TORT
177
ENGLISH LEGAL SYSTEM
85
TABLE OF ARTICLES
187
ENVIRONMENTAL LAW
98
TABLE OF CASES
197
© 2001 Cavendish Publishing Limited All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without the written permission of the publisher. Published by Cavendish Publishing Limited The Glass House Wharton Street London WC1X 9PX Tel: +44 (0)20 7278 8000 Fax: +44 (0)20 7278 8080 Subscriptions to Cavendish Publishing Limited email:
[email protected] www.cavendishpublishing.com Printed and bound in Great Britain ISBN 1 85941 593 8 STUDENT LAW REVIEW • 2000 YEARBOOK
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Case notes Lustig-Prean and Beckett v The United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Locabail (UK) Ltd v Bayfield Properties Ltd and Other Applications . . . . . . . . . . . . .3 T v United Kingdom; V v United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 R v Secretary of State for the Home Department ex p Amnesty International and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 R v Secretary of State for the Home Department ex p Manning and Another . . . . . .6 R v Secretary of State for the Home Department ex p Hindley . . . . . . . . . . . . . . . . . .6
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Case notes
constituted a direct interference with the right to respect for their private
by David Stott, Deputy Dean, Anglia Law School, Anglia Polytechnic University
restriction was ‘in accordance with the law’. It was not, however,
lives within Art 8, para 1. Such interference could, therefore, be justified only if it was ‘in accordance with the law’ and ‘necessary in a democratic society’ within Art 8, para 2. The Court found that the ‘necessary in a democratic society’, the hallmarks of which included pluralism, tolerance and broadmindedness. Although the State had a margin of appreciation in making the initial assessment of necessity, particularly serious reasons by way of justification were required where the restriction concerned a most intimate aspect of an individual’s
Lustig-Prean and Beckett v The United Kingdom Applications Nos 31417/96 and 32377/96, 27 September 1999, ECHR
private life. In the instant case, the interferences had been especially grave because (i) the investigation process was of an exceptionally intrusive character; (ii) the administrative discharge of the applicants
Facts
had a profound effect on their careers and prospects; and (iii) the absolute and general character of the policy was striking – it resulted in
The applicants had been discharged from the armed forces because
an immediate discharge from the armed forces irrespective of the
they were homosexual. Both had exemplary service records. They
individual’s conduct or service record. The particularly convincing and
complained that this constituted a violation of Art 8 of the European
weighty reasons to justify such interferences did not exist. The question
Convention on Human Rights (the right to respect for private and
of the ‘just satisfaction’ to be awarded to the applicants under Art 41 of
family life, home and correspondence) taken alone and in conjunction
the Convention was deferred.
with Art 14 (Convention rights and freedoms are to be secured without discrimination). The applicants, along with two others, had failed in
Comment
applications for judicial review to have the decisions to discharge them
The case demonstrates the significant difference of degree between the
set aside as being irrational (R v Ministry of Defence ex p Smith; R v
test of Wednesbury unreasonableness/CCSU irrationality applied in
Admiralty Board of the Defence Council ex p Lustig-Prean [1995] 4 All
national judicial review applications and the principles of necessity in a
ER 427). In the High Court, Simon Brown LJ was sympathetic to the
democratic society – in particular, the principle of proportionality –
applicants but concluded that:
applied in European Convention case law. It serves as an illustration of
... [the courts] owe a duty ... to remain within their
the potential impact of the Human Rights Act 1998 on judicial review
constitutional bounds and not trespass beyond them.
applications in the field of human rights once the Act enters into force
Only if it were plain beyond sensible argument that no
in October 2000.
conceivable damage could be done to the armed services as a fighting unit would it be appropriate for this Court now to remove the issue entirely from the hands of both the military and of the government.
Applying the Wednesbury principles, a reasonable minister could, on
Locabail (UK) Ltd v Bayfield Properties Ltd and Other Applications, Transcript, 17 November 1999
the material before him, have reasonably made the decision reached.
Facts
Had the Convention been part of English law, however, and the judges
Five applications which argued for the disqualification of judges on
entitled to ask whether the policy answered a pressing social need and
grounds of bias - either that the judge was automatically disqualified
was proportionate to the legitimate aim to be achieved (the tests to
because bias was to be presumed on the basis that the judge had an
determine whether a restriction on a right is ‘necessary in a democratic
interest in the outcome of the case or, alternatively, that there was a real
society’ and therefore permissible under Convention jurisprudence)
danger of bias – were heard together. In the first two applications,
then the primary judgment would have been for the court. The Court of
where the applicant’s claims to equitable interests in two properties
Appeal dismissed the applicants’ appeal. Although Sir Thomas
owned by her husband had been dismissed, the deputy judge of the
Bingham noted that ‘the more substantial the interference with human
High Court was a partner in a firm of solicitors which had acted for a
rights, the more the court will require by way of justification’, the court
company which had claims against the applicant’s husband and against
was still not prepared to hold that the decision was unreasonable in the
a company controlled by the applicant’s husband. In the third
sense that it was: ‘... beyond the range of responses open to a
application, the recorder, who had awarded substantial damages
reasonable decision maker’. Further, ‘the fact that a decision maker
against the defendant pursuant to a traffic accident, had written articles
failed to take account of Convention obligations when exercising an
which allegedly indicated that he could have been influenced by an
administrative discretion is not of itself a ground for impugning the
unconscious but settled prejudice against the insurers who were the
exercise of that discretion’.
real defendants. In the fourth application, the applicant’s complaint of sexual harassment and race discrimination at the tax office of the Inland
Held
Revenue where she had worked between 1985 and 1994 had been
The European Court of Human Rights held that the investigations by
for the Inland Revenue from 1958 to 1961 in a junior position. In the
the military police into the applicants’ homosexuality and their
fifth application, a High Court judge had refused an extension of time in
consequent discharge on the sole ground of their sexual orientation
which to enter and serve on the Bristol Betting and Gaming Licensing
dismissed by the industrial tribunal. The tribunal chairman had worked
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Committee an application for judicial review of its decision to extend
issue to be decided by the judge, he had in a previous case rejected the
the permits of Corals, the bookmakers. The judge was a director of
evidence of that person in such outspoken terms as to throw doubt on
companies which owned properties of which Corals were the tenants.
his ability to approach such person’s evidence with an open mind on any later occasion; or if, on any question at issue in the proceedings
Held The third application was granted on the basis that there was a real danger of bias. The other applications were refused.
Comment
before him, the judge had expressed views in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind; or if, for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him.
The decision of the House of Lords in R v Bow Street Metropolitan
Judges should not yield to ‘tenuous or frivolous’ objections.
Stipendiary Magistrate ex p Pinochet Ugarte (No 2) ([1999] 2 WLR 272)
Although it was important for justice to be seen to be done, it was
that the rule of automatic disqualification extended to a limited class of
equally important not to encourage parties to believe that by seeking
non-financial interests made further such challenges inevitable. Prior to
the disqualification of a judge, they would have their case tried by
Pinochet, it was established that the automatic disqualification rule
someone more likely to decide in their favour.
applied where the judge had a pecuniary or proprietary interest in the outcome. Pinochet applied the principle of automatic disqualification to a situation where a judge was associated with the promotion of a particular cause, holding that Lord Hoffmann was automatically disqualified because of his association with Amnesty International. The
T v United Kingdom; V v United Kingdom Applications 24724/94 and 24888/94 (1999) European Court of Human Rights
House of Lords had made it very clear, however, that the facts of that
Facts
case were exceptional in that (i) Amnesty International was a party to
The applicants had been convicted of the murder of two year old James
the appeal; (ii) Amnesty International had been joined to argue for a
Bulger in 1993. At the time of the commission of the offence they were
particular result; (iii) Lord Hoffmann was a director of a charity closely
10 years old. The accused boys were tried before a judge and jury at
allied to Amnesty International and sharing Amnesty International’s
Preston Crown Court. They were subjected to the formality of an adult
objects. Lord Browne-Wilkinson had suggested, however, that ‘there
criminal trial, subject to certain modifications, for example, the boys
may well be other exceptional cases’. The Court of Appeal in Locabail
were seated next to social workers with their parents nearby, the
regarded any extension of the principle of automatic disqualification as
hearing times were shortened to reflect the school day and a 10 minute
undesirable, unless ‘plainly required to give effect to the important
interval was taken each hour. Following their conviction, the boys were
underlying principles upon which the rule is based’.
sentenced to be detained at Her Majesty’s pleasure (as required under s
The ‘real danger’ test was established by the House of Lords in
53(1) of the Children and Young Persons Act 1933 for persons under
R v Gough ([1993] AC 646), where the House had attempted to resolve
the age of 18 convicted of murder). The trial judge recommended that a
the divergence between the previous tests of reasonable suspicion and
period of eight years be served to satisfy the requirements of retribution
real likelihood. Lord Goff had rejected the test of reasonable suspicion
and deterrence before the boys became eligible to be considered for
and explained the real danger test in terms of ‘possibility rather than
parole (the ‘tariff’). Had the defendants been adults then the judge
probability of bias’.
stated that he would have set the tariff at 18 years. The Lord Chief
The Court of Appeal in Locabail gives some guidance on the
Justice recommended a tariff of 10 years. The final decision was,
application of the real danger test. The court was at pains to emphasise
however, by statute that of the Home Secretary. He set the tariff at 15
the objective nature of the test and that the onus of establishing it was
years. In so doing, the Home Secretary took into account public
on the applicant. Although the court considered that it would be futile
opinion as manifested in letters and petitions and a poll taken by the
to attempt to list the factors which may give rise to a real danger of bias,
Sun newspaper. In national judicial review proceedings, the tariff set by
it proceeded to give a comprehensive list of examples. The court could
the Home Secretary was declared unlawful (see R v Secretary of State
not conceive of circumstances in which an objection could be soundly
for the Home Department ex p Venables and Thompson [1997] 3 All
based on the religion, ethnic or national origin, gender, age, class,
ER 97). The Home Secretary had treated as irrelevant the progress and
means or sexual orientation of the judge; on the judge’s social,
development the boys might make while detained; also, in exercising
educational, service or employment background or history, nor that of
such a sentencing power, the Home Secretary must be detached from
any member of the judge’s family; on previous political association or
public opinion. No decision on the applicants’ new tariff had been
membership of social, sporting or charitable bodies or Masonic
taken at the time of the judgment of the European Court of Human
institutions; on previous judicial decisions or extra-curricular utterances;
Rights.
on previous receipt of instructions to act for or against any party,
The applicants complained of violations of the European
solicitor or advocate engaged in a case before him or membership of
Convention on Human Rights in that (i) in view of their young age, their
the same Inn, circuit, local Law Society or chambers. By contrast, a real
trial in public in an adult court and the punitive nature of their
danger of bias might well be thought to arise if there were personal
sentences amounted to inhuman or degrading treatment or punishment
friendship or animosity between the judge and any member of the
in contravention of Art 3 of the Convention; (ii) they had been denied a
public involved in the case or if the judge were closely acquainted with
fair trial in breach of Art 6; (iii) they had suffered discrimination in
any member of the public involved in the case, particularly if the
breach of Art 14 in that a child aged less than 10 at the time of the
credibility of that individual could be significant in the decision of the
commission of the offence would not have been held criminally
case; or if, in a case where the credibility of any individual were an
responsible; (iv) the sentence imposed of detention during Her
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(v)
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There had been no violation of Art 3 in respect of the
Art 5; (v) the fact that a government minister, rather than a judge, was
applicants’ sentences. The punitive element inherent in the tariff
responsible for setting the tariff violated their rights under Art 6; and (vi)
approach did not give rise to a breach of Art 3. Nor did the
they had not had the opportunity to have the continuing lawfulness of
Convention prohibit states from subjecting a child or young
their detention examined by a judicial body such as the Parole Board in
person convicted of a serious crime to an indeterminate
breach of Art 5, para 4. The European Commission declared the
sentence allowing for the offender’s continued detention or
application admissible and expressed an opinion that (i) there had been
recall following release where necessary for the protection of
no violation of Art 3 in respect of the applicants’ trial (17 votes to two);
the public. The applicants had not yet reached the stage in their
(ii) there had been a violation of Art 6 in respect of the applicants’ trial
sentences where they were able to have the continued
(14 votes to 5); (iii) no separate issue arose under Art 14 in respect of
lawfulness of their detention reviewed with regard to the
the applicants’ trial (15 votes to four); (iv) there had been no violation of
question of dangerousness. It could not be excluded, however,
Arts 3 and 5 in respect of the applicants’ sentences (17 votes to two); (v)
that an unjustifiable and persistent failure to fix a tariff, leaving
there had been a violation of Art 6 in respect of fixing the applicants’
the detainee in uncertainty over many years as to his future,
sentences (18 votes to one); and (vi) there had been a violation of Art 5, para 4 (18 votes to 1). The case was referred to the European Court by
might give rise to an issue under Art 3. (vi)
the United Kingdom Government and by the Commission.
There had been no violation of Art 5 in imposing a sentence of detention during Her Majesty’s pleasure on all young offenders convicted of murder, irrespective of their individual
Held On issues relating to the trial: (i)
The attribution of criminal responsibility to the applicants did
circumstances and needs. However: (vii)
‘a fair … hearing … by an independent and impartial tribunal’.
not give rise to a breach of Art 3. There was no commonly
The fixing of the tariff amounted to a sentencing exercise and
accepted minimum age for the imposition of criminal
the Home Secretary, who set the applicants’ tariff, was clearly
responsibility in Europe, although most Member States had an age limit higher than that in the United Kingdom. No clear tendency could be ascertained from examination of the relevant international instruments. In the absence of a clear common standard, the age of 10 could not be said to differ disproportionately from the age limit followed by other European States. (ii)
The fact that the criminal proceedings took place over three weeks in public in an adult Crown Court with attendant formality and that, after conviction, the applicants’ names were permitted to be published did not amount to a violation of Art 3. Whilst the public nature of the proceedings may have exacerbated feelings of guilt, distress, anguish and fear, the trial process had not caused, to a significant degree, suffering beyond that which would inevitably have been engendered.
There had been a violation of the protection afforded by Art 6 to
not independent of the executive. (viii)
There had been a violation of Art 5, para 4 in that the applicants had been deprived since their convictions of the opportunity to have the lawfulness of their detention reviewed by a judicial body. Given the sentence of detention during Her Majesty’s pleasure was indeterminate and that the tariff was set by the Home Secretary and not the trial judge, it could not be said that the supervision required by Art 5, para 4 was incorporated in the trial court’s sentence. Further, the failure to set a new tariff meant that the applicants’ entitlement to access to a tribunal for periodic review of the continuing lawfulness of their detention remained inchoate.
Comment
However:
The decision of the European Court of Human Rights brings the
(iii)
The applicants had been denied a fair trial in accordance with
effective sentencing powers of the Home Secretary once again into the
Art 6 in that they were unable to participate effectively in the
spotlight. Senior members of the judiciary have in recent years
criminal proceedings against them. It was essential that a child
expressed concern over the increasing powers – normally regarded as
charged with an offence be dealt with in a manner which took
judicial – being placed by statute into the hands of ministers and over
full account of his age, level of maturity and intellectual and
government otherwise interfering in sentencing matters previously the
emotional capacities, and that steps were taken to promote his
subject of judicial discretion, as evidenced in particular by the Crime
ability to understand and participate in the proceedings. It was
(Sentences) Act 1997. The House of Lords in R v Secretary of State for
necessary to conduct the proceedings in such a way as to
the Home Department ex p Venables and Thompson (above) itself
reduce as far as possible feelings of intimidation and inhibition.
expressed concerns informed by constitutional principle. Lord Steyn
The formality and ritual of the Crown Court must at times have
noted that:
seemed incomprehensible and intimidating. Further, there was
In fixing a tariff, the Home Secretary is carrying out,
some evidence that the post-traumatic stress disorder suffered
contrary to the constitutional principle of the separation
by T, combined with the lack of any therapeutic work since the
of powers between the executive and the judiciary, a
offence, had limited his ability to instruct his lawyers and to
classic judicial function … the power to fix a tariff is …
testify adequately in his own defence. It was not sufficient to
(iv)
equivalent to a judge’s sentencing power.
fulfil the requirements of Art 6 that skilled and experienced
It is suggested that the judiciary is right to have concerns. There is an
lawyers had represented the applicants.
uneasy tension in politicians having such powers conferred upon them.
No separate issue arose under Art 14.
Justice should not be meted out in order to respond to a popular desire
On issues relating to sentence:
for revenge. Individual rights are not to be sacrificed at the altar of the
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politician’s desire for electoral survival. The potential for political – and politically motivated – intervention in ‘justice’ is further evidenced by
Held
the Home Secretary’s powers in extradition cases, sic Pinochet. The
The application was allowed and the decision not to prosecute was
judges are sensitive to incursions into their domain. They have not, to
quashed. Lord Bingham considered that the general responsibility for
date, had in their armoury a weapon to challenge legislation that
the institution and conduct of prosecutions was entrusted to the
confers wide judicial powers upon the executive. The Human Rights
Director of Public Prosecutions. It was, however, clear that a decision
Act 1998, once in force, may, at least in the limited power to issue a
not to prosecute was susceptible to judicial review, albeit that such
declaration of incompatibility, be that weapon.
power was to be exercised sparingly. The standard of review should not be set too high, since judicial review was the only means by which a citizen could seek redress against such a decision. There was no
R v Secretary of State for the Home Department ex p Amnesty International and Others (2000) Lawtel, 31 January; R v Secretary of State for the Home Department ex p Amnesty International and Others (2000) Lawtel, 15 February
general duty on the DPP to give reasons, but the right to life was the most fundamental of all human rights. It was at the forefront of the European Convention on Human Rights and the power to derogate (under Art 15 of the Convention) from it was very limited. In the absence of compelling reasons to the contrary, the DPP would be
In each of these applications, the applicants, including the state of
expected to give reasons where the decision related to a death in
Belgium, sought the disclosure of the medical report on the basis of
custody and an inquest jury had returned a verdict of unlawful killing.
which the Home Secretary had indicated that he was minded to
Further, the caseworker had not addressed and resolved specific matters
exercise his discretion under s 12 of the Extradition Act 1989 not to
which the officer would have to overcome to defeat the prima facie
extradite Senator Pinochet to Spain to face charges of murder and
case against him and an objective appraisal of the prospects of a
torture. In the first application, Maurice Kay J concluded that there was
successful prosecution required such matters to be taken into account.
no arguable case. In the second application, the applicants restricted their request to asking that the medical report be disclosed to the requesting states under conditions of strict confidentiality so that they might comment upon its conclusions. Simon Brown LJ, Latham J and Dyson J held that fairness required disclosure. The public interest in making the further limited disclosure sought outweighed the remaining confidentiality in the report. This was the final chapter in the Pinochet episode staged in the United Kingdom. Pinochet has now flown the coop.
Comment The giving of reasons for decisions is to be regarded as a characteristic of good administration, which the courts try to ensure via the exercise of their powers of judicial review. In certain circumstances, for example, confidentiality, the public interest will override this aspect of good administration. This should, however, be the exception. Citizens feel aggrieved when the administration gives decisions against them. They rightly feel an increased sense of grievance when the reasons for such adverse decisions are not given. In recent years the courts have
R v Secretary of State for the Home Department ex p Manning and Another [2000] 3 WLR 463
moved closer to a position of a universal requirement to give reasons for decisions and, in this instance, used the human rights weapon in their battle to ensure good administration.
Facts The applicants’ brother had died of asphyxia while on remand in custody for an offence of violence. His death followed a search for drugs undertaken by two prison officers. During the search, the
R v Secretary of State for the Home Department ex p Hindley [2000] 2 All ER 385, HL
deceased had, without complaint, removed all clothing below the
Facts
waist. On being told by one of the officers, probably without
In 1966, the applicant, along with Ian Brady, was convicted of the
justification, to squat so as to enable an intimate body search to be
murder of two children and received a mandatory life sentence. In
carried out, he had refused and, it seemed, launched an attack on the
1983, Leon Brittan outlined his policy as to the release of mandatory
other prison officer. At a subsequent inquest, the evidence indicated
life sentence prisoners in the exercise of his discretion under the
that the asphyxia was due to the way in which the deceased’s head had
Criminal Justice Act 1967. Child murderers could normally expect to
been held by a particular prison officer trying to restrain him. The jury
serve a tariff period of at least 20 years to satisfy the requirements of
returned a verdict of unlawful killing. A senior caseworker in the Crown
retribution and deterrence. In 1985, the applicant’s tariff was fixed
Prosecution Service concluded that there was a prima facie case against
provisionally at 30 years. In 1987, Hindley confessed to complicity in
the prison officer but no realistic prospect of the prosecution being able
the murders of three other children. In February 1997, Michael Howard
to establish that excessive force had been used deliberately rather than
concluded that a ‘whole life’ tariff was appropriate to Hindley and, in
in an attempt to impose proper restraint. The applicants’ request for full
November 1997, Jack Straw stated that he saw no reason to depart from
reasons for the decision not to prosecute was denied and they sought
that decision, though he was prepared to listen to future
judicial review. Following the grant of permission to apply for judicial
representations. The applicant appealed from the decision of the Court
review, the caseworker’s review note setting out his full reasoning was
of Appeal upholding the Divisional Court’s refusal of an application for
served on the applicants. The grounds of the application were (i) that no
judicial review for (i) a declaration that the policy of imposing whole
adequate reasons for the decision were given; (ii) that the reasons which
life tariffs was in principle unlawful; and (ii) an order to quash the
were given did not reflect the true basis of the decision; and (iii) that the
decisions to impose and maintain the applicant’s whole life tariff on the
true reasons, now disclosed, were unsustainable.
grounds that it was an unlawful increase on the initial 30 year term and
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disproportionate given her age at the time of the murders and the length
transcript, 3 April; (2000) The Times, 28 April, the Court of Appeal
of time already spent in custody.
expressed the view that the Convention was being argued too frequently in challenges to the admission of identification evidence. In
Held The appeal was dismissed. There was no reason why a whole life tariff should not be imposed for the purposes of punishment where the crime was sufficiently heinous. The language of s 1(1) of the Murder (Abolition of Death Penalty) Act 1965 read with s 27 of the Prison Act 1952 yielded no support for an argument to the contrary. The Home Secretary’s policy, which provided for life-long incarceration but which also provided for periodic review, was not an unlawful fetter on his discretion. Nor was the imposition of a whole life tariff in the particular circumstances of Hindley’s case unlawful. The 1985 decision was expressed to be provisional and had not been communicated to Hindley until 1994 when she was also told that it had been made a whole life tariff. Further, Leon Brittan’s decision had been made in ignorance of material facts – Hindley’s complicity in the other three murders.
the words of Swinton Thomas LJ delivering the judgment of the court: The European Convention … was promulgated following the horrors and the deprivations of human rights … between 1939 and 1945 … The Convention has been incorporated into our law by the Human Rights Act 1998 … The purpose underlying the Act is to protect citizens from a true abuse of human rights. If, as it seems to us has happened in this case, it is utilised by lawyers to jump on a bandwagon and to attempt to suggest that there has been a breach of the Act or of the Convention when either it is quite plain that there has not or alternatively the matter is amply covered by domestic law, then not only the lawyers, but the Act itself … will be brought into disrepute.
In R v Secretary of State for the Home Department ex p Gavin (2000) Lawtel, 31 July, Forbes J rejected an argument based, inter alia, upon
Comment
the provisions of the European Convention. The prisoner applicant
This is unlikely to mark the end of the legal road for Myra Hindley’s bid
family) in an attempt to obtain judicial review of a decision not to
for freedom. She might choose to take her case to the European Court
facilitate the artificial insemination of his wife. In R v Secretary of State
of Human Rights or await the implementation of the Human Rights Act
for the Environment, Transport and the Regions ex p Challenger and
in October before mounting a further challenge in the domestic courts.
Another (2000) Lawtel, 15 June, Harrison J refused to allow the right to
She may take advantage of the decision in V v United Kingdom and T v
a fair hearing contained in Art 6 of the Convention and s 6 of the
United Kingdom where the European Court of Human Rights found
Human Rights Act to be argued even though the relevant hearing
breaches of Arts 5 and 6 of the Convention in sentencing powers being
would be in process at the time the 1998 Act came into effect.
argued Arts 8 (the right to a family life) and 12 (the right to found a
exercised by a member of the executive who could not be regarded as
There are, of course, dangers in lawyers tossing the human
being impartial. She might also consider Curley v United Kingdom,
rights coin into every conceivable argument. But the Court of Appeal’s
decided only two days before the decision of the House of Lords in the
statement in Perry might itself be taken to suggest some
Hindley case itself. There the European Court of Human Rights found
misunderstandings. While the history of the Convention lies in the
that the rights, under Art 5(4), of a prisoner detained at HM pleasure
atrocities of the Second World War, it is very clear that the Convention
had been violated because there was no provision for the lawfulness of
has a dynamic quality; it is, in the words of the European Court of
his continued detention to be reviewed by a court offering the
Human Rights, ‘a living instrument which … must be interpreted in the
necessary judicial guarantees. In Curley, however, that principle was
light of present day conditions’. Further, once the Human Rights Act
applied in the particular context of the power to order release upon
comes into force in October, then the rights protected by the
expiry of the tariff part of the applicant’s mandatory life sentence.
Convention will themselves be part of our domestic law. There is clearly concern about the workload likely to be created
Note on the Human Rights Act 1998
after the full implementation of the Human Rights Act. Practice Direction (Crown Office List: Preparation for Hearings) (2000) The
Some members of the judiciary are expressing concern, even before the
Times, 24 March announced that, in order to clear the backlog of cases,
implementation of the Human Rights Act, about the frequency with
the number of courts sitting in the Crown Office List from May to the
which the European Convention is being argued. In In re F (Minors)
end of July was to be increased substantially.
(Care Proceedings: Contact) (2000) The Times, 22 June, Wall J suggested that the Convention should not be routinely paraded before the court as a makeweight ground of appeal. In Regina v Perry (2000)
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L I B E R T I E S
Articles The Human Rights Act: minimalism or activism? ........................................................9 The Human Rights Act and developments in counter-terrorism and State surveillance............................................................................................13
Case notes Reynolds v Times Newspapers ..................................................................................18 R v Chesterfield Justices Chief Constable of Derbyshire ex p Bramley ......................18 Director of Public Prosecutions v Barnard and Others ..............................................19 Peterkin v Chief Constable of Cheshire......................................................................20 Joseph Hashman and Wanda Harrup v United Kingdom..........................................21
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The Human Rights Act: minimalism or activism? by Helen Fenwick, Reader in Law, University of Durham The exam in 2000 is the last exam period before the Human Rights Act comes into force, on 2 October 2000. Therefore, questions on the Act are inevitable. Below, one of the most significant issues relating to the Act is discussed. The impact of the Human Rights Act (HRA) 1998 will largely depend on
acceptance in the Member States and in particular where it is closely
the stance of the judiciary. Under s 3 of the HRA, the judiciary must
linked to the notion of democracy, the Court will afford a narrow
interpret legislation if at all possible so as to comply with the Convention
margin of appreciation only. In Socialist Party and Others v Turkey
rights and, under s 2, they must take the Strasbourg jurisprudence into
(judgment of 25 May 1998 (App No 20/1997/804/1007) paras 41, 47,
account. Section 6 provides that public authorities, including courts, are
50), the Court found that the dissolution of the Socialist Party of Turkey
bound by the rights. In considering these sections, the judiciary have the
had breached Art 11 since:
opportunity of taking an activist or a minimalist approach. In other
... there can be no democracy without pluralism ... It is
words, they can seek to give the rights genuine efficacy or they can adopt
of the essence of democracy to allow diverse political
the interpretation which will cause least disturbance to the existing order.
programmes to be proposed and debated.. Taking these
One factor which will be relevant is the doctrine of the margin of
matters into account ... In determining whether a
appreciation. The European Court of Human Rights has stated that the
necessity existed, the Contracting State was found to
role of the Convention in protecting human rights is subsidiary to the role
possess only a limited margin of appreciation.
of the national legal system (Handyside v UK A 24 para 48 (1976)) and
The picture is more confused where a principle may be said to have
that, since the State is better placed than the international judge to
received some general acceptance within the Contracting States and
balance individual rights against general societal interests, Strasbourg will
where the Court itself appears to have espoused it in the past but
operate a restrained review of the balance struck. The doctrine of the
where it cannot clearly be said that a common standard can be found.
margin of appreciation conceded to states has now reached the stage
In such an instance, the determining factor may be the general
where it can be said that it permeates the Convention jurisprudence. If a
principles underlying the Convention. The need to adhere to such
broader margin is allowed, Strasbourg review will be highly
principles underlies the remarks in Cossey v UK (A 184 (1990)) of
circumscribed. If the margin allowed is narrow, a very full and detailed
Judge Martens in his dissenting Opinion:
review of the interference with the guarantee in question will be
… this caution [in allowing a wide margin of
conducted. See, for example, the Sunday Times case Series A 30 (1979);
appreciation based on a strict application of the
2 EHRR 245.
common standards doctrine] is in principle not
The doctrine of proportionality is strongly linked to the principle
consistent with the Court’s mission to protect the
of the margin of appreciation – a narrow margin conceded to the State
individual against the collectivity … in this context [of
means that a rigorous or intensive review of the proportionality between
legal recognition of gender reassignment] there simply is
the aim of an interference and the extent and nature of the interference
no room for a margin of appreciation [at para 5.6.3].
will be undertaken. The width allowed depends on a number of factors
The doctrine is a distinctively international law doctrine, based on the
including the aim of the interference in question and its necessity.
need to respect the decision making of nation States within defined
The common standards doctrine will be influential – the lack of a
limits. Therefore, it would not appear to have any application in
uniform standard among the Member States will tend to mean that a
national law. However, this presents the judiciary with a difficulty in
wide margin will be conceded. The lack of a uniform standard was the
taking account of the Strasbourg jurisprudence. While it appears to be
key factor in the ruling in Otto-Preminger Institut v Austria (Series A 295-
clear that they should not overtly apply the doctrine, they still have to
A (1994); 19 EHRR 34).The decision concerned the seizure of a film
consider how to apply Strasbourg case law which was heavily
likely to offend religious feeling. The European Court of Human Rights
influenced by it. If, in a particular instance, a judge finds that on the
found that the film would receive protection under Art 10 but that its
issue confronting her, a case which goes in favour of protecting the
seizure fell within the ‘rights of others’ exception. In considering whether
right in question is applicable, the judicial determinations would
its seizure and forfeiture was ‘necessary in a democratic society’ in order
concern only its interpretation and the application of the case to the
to protect the rights of others to respect for their religious views (under Art
instant facts, rather than the question of the application of the margin
9), the Court took into account the lack of a uniform conception within
of appreciation doctrine. This, in itself, would obviously leave open
the Member States of the significance of religion in society and therefore
leeway for a minimalist or activist approach. But where a judge is
considered that the national authorities should have a wide margin of
confronted with a decision which fails to uphold the right in question,
appreciation in assessing what was necessary to protect religious feeling.
she should ask whether the failure was due to an application of the
On the other hand, where a principle has received general
margin of appreciation. If so, she should disapply the margin of
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appreciation aspects of the decision since otherwise she will have
from the instant case, which, although open to question, was a
allowed this distinctively international law doctrine to influence
legitimate interpretation and did not affect the significant principle
domestic decision making.
encapsulated in Teixeira, which was that where certain forms of
At the present time, when the Convention rights are in force in
impropriety are used in the obtaining of non-confession evidence, the
Scotland, under s 57(2) of the Scotland Act 1998, and have some effect
trial will be unfair from the outset. The unfairness could be cured only
in the rest of the UK due to s 22(4) of the HRA (affording the Act a
by staying the prosecution for abuse of process or excluding the
measure of retrospectivity when used as a ‘shield’ against a public
evidence.
authority), we can see early indications as to the judicial responses to the Convention.
The next decision also adopted a somewhat minimalist stance, in a more significant fashion. In Paton v Procurator Fiscal ((1999)
In Nottingham City Council v Mohammed Amin ((1999)
Judgment of 24.11.99), the appellant was to be interviewed about
judgment of 15.11.99), Lord Bingham took Art 6 of the Convention into
attempted theft and at the police station he indicated that he wanted a
account and applied the judgment in Teixeira de Castro v Portugal
solicitor to be informed of his detention. When he was interviewed, his
((1998) 28 ECHR 101; [1998] Crim LR 751). In Teixeira, the applicant,
solicitor was not present and he was not told that the police had a
who had no criminal record and was previously unknown to the
discretion to allow his solicitor to be present during the interview if he
police, was introduced by a third party to two undercover police
so wished. After caution, the appellant admitted that he was trying to
officers who told him that they wished to buy 20 grams of heroin. He
break into the premises in question. When the charges were recited (he
bought the drugs on their behalf at a price allowing him to take a profit.
was charged with attempting to break into premises with intent to steal
He was then tried and convicted on the evidence of the officers of drug
and, in the alternative, that he was found at premises without lawful
dealing and sentenced to six years’ imprisonment. The Court found, by
authority, the inference being that he might commit theft contrary to s
eight votes to one, that the entrapment by the police officers in order to
57(1) of the Civil Government (Scotland) Act 1982), the appellant said
secure evidence had made a fair trial impossible from the outset and on
that he had been merely passing by when the police chased him. The
this basis found a breach of Art 6.
appellant complained that he could not receive a fair trial and argued
In Amin, the respondent, who was driving an unlicensed motor
that Arts 6(1) and 6(3)(c) of the Convention had been contravened. By
vehicle within the area of the appellant council, responded to a flagging
virtue of s 57(2) of the Scotland Act 1998, a Scottish court is at present
down by two police constables posing as members of the public; he
required, inter alia, to take into account the various rights enshrined in
took them as passengers to their destination where the fare was paid
the Convention. The Court took into account the fact that the appellant
over. A licence for that area had not been previously obtained under s
had not made a request for his solicitor to be present and that neither
37 of the Town Polices Clauses Act 1847 contrary to s 45 of that same
Scottish law nor the Convention required that in all cases a detained
Act. The respondent relied on para 38 of the judgment in Teixeira
person should be afforded the opportunity to have a solicitor present.
where it was found that the evidence from entrapment should have
The Court found that the question whether a fair trial could be achieved
been excluded on the basis that ‘the two police officers did not confine
depended not simply upon what happened during the preliminary
themselves to investigating (the defendant’s) criminal activity in an
investigation, but on the whole proceedings and there were a number
essentially passive manner, but exercised an influence such as to incite
of safeguards accorded to the accused during the investigation and the
the commission of the offence’. The respondent contended that the
trial process; on this basis, the appeal was refused and the case was
police constables had not confined themselves to passive investigation
remitted to the sheriff to proceed to trial.
but had incited him to commit the offence, thereby rendering the
These findings do not appear to encourage the notion that
proceedings as a whole unfair. The magistrate had accepted this and
certain rights, such as access to custodial legal advice, are of especial
dismissed the information on the ground that the constables’ evidence
significance as fundamental constitutional rights; they encourage a
was inadmissible, following Teixeira. On appeal, Lord Bingham found
broad brush approach which appears to assume that a breach of a
that, although it was accepted that on a precise and literal reading of
suspect’s rights may be cured by affording other rights. However, these
the Court’s language at para 38 the respondent had been entitled to
findings may be based on the lack of a right to have a solicitor present
make the submission he had made, the far reaching effects which the
in the police interview in Scotland, and, it is suggested, on a narrow
respondent based on it could not. The court found that Teixeira differed
and doubtful interpretation of Art 6. Although on its face Art 6 does not
from the respondent’s case since the criminal act was of a much more
require that a suspect should have access to custodial legal advice, the
minor nature and the circumstances simpler. On the basis of the facts of
decision in Murray (John) v UK ((1996) 22 EHRR 29) strongly suggests
the respondent’s case, it could not be concluded that he had been
that such advice should be available where adverse inferences could be
pressured or incited into committing an offence and therefore it could
drawn from silence.
not be concluded that the admission of the evidence of the police
In contrast to these decisions, the decisions in the Divisional
constables would have such an adverse effect on the fairness of the
Court on appeal and in the House of Lords in R v DPP ex p Kebilene
proceedings that the court ought not to admit it.
and Others; R v DPP ex p Rechachi ([1999] 3 WLR 175) provide
This was quite a restrictive interpretation of Teixeira. The basis
strongly diverging and significant indications as to the stance which
on which it was found that flagging down the driver – a positive action
may be taken to ‘unfavourable’ Strasbourg decision which have been
– was not incitement to commit the offence is, it is suggested, unclear. It
influenced by the margin of appreciation doctrine. A robust
is not entirely certain that the driver would have committed the offence
interpretation of Art 6(2) was adopted in the Divisional Court. The first
had not the constables positively encouraged him to do so by flagging
three defendants had been arrested and charged under s 16A of the
him down. He had turned off his light, thereby indicating that he was
Prevention of Terrorism Act 1989, as inserted. At trial, the judge ruled
not for hire.
that s 16A was incompatible with Art 6(2). The DPP, when asked to
Teixeira was hardly influenced by the doctrine of the margin of
reconsider his consent to the prosecution, appeared before the judge to
appreciation. Therefore, the decision could be applied as though it was
argue that the ruling was wrong since in his opinion, based on legal
an ordinary precedent. Lord Bingham found a means of distinguishing it
advice, the two were compatible. The fourth defendant, Rechachi, was
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arrested and charged under ss 16A and 16B of the 1989 Act, as
in Killen that an identical provision in s 7(1) of the Northern Ireland
inserted. Following the DPP’s consent to the institution of proceedings,
(Emergency Provisions) Act 1973 placing an onus on the accused to
he was arraigned and pleaded not guilty. The defendants sought
disprove his knowledge of possession should not be used unless,
judicial review of the DPP’s decision. The Lord Chief Justice, Lord
having done so, the court would be left satisfied beyond reasonable
Bingham, found that the crucial question concerned the impact, if any,
doubt of the guilt of the accused.
of the Human Rights Act 1998 on the exercise of the DPP’s decision to
In other words, Lord Hope considered that the meaning of s
give his consent to prosecute, between its enactment and the bringing
16A could be affected by reading into it an implied meaning under s 3
into force of its main sections. The decision to give consent was
of the HRA. But, in arriving at the meaning of s 16A, he thought that Art
reviewed, taking into account the ruling of the judge as to the
6(2) could be viewed as qualified to an extent although the guarantee it
incompatibility of s 16A and Art 6(2). The public interest in prosecution
enshrines is expressed in absolute terms. He said:
was taken into account. One relevant aspect of that interest was
In this area, difficult choices may have to be made by the
whether, if the applicants were convicted, their convictions would be
executive or the legislature between the rights of the
upheld on appeal. If at the time of any appeal the main provisions of
individual and the needs of society. In some
the Human Rights Act were in force, the applicants would be entitled to
circumstances, it will be appropriate for the courts to
rely on ss 7(1)(b) and 22(4) of the Act. The DPP had relied on legal
recognise that there is an area of judgment within which
advice to the effect that the provisions in question were not
the judiciary will defer, on democratic grounds, to the
incompatible with Art 6(2). The Court could therefore, properly,
considered opinion of the elected body or person whose
consider the soundness of that advice despite the provision of s 29(3) of
act or decision is said to be incompatible with the
the Supreme Court Act 1981 which impliedly precludes such review. The applicants submitted that the presumption of innocence under Art 6(2) was infringed if a legal burden was placed on a defendant to disprove any substantial ingredient of the offence with which he was charged. They argued that ss 16A and 16B placed such a burden on defendants. The Lord Chief Justice, Lord Bingham, found that both sections undermined the presumption of innocence under Art 6(2) ‘in a blatant and obvious way’ due to the use of presumptions and the possibility of conviction on reasonable suspicion falling short of proof under s 16A, and the lack of a need to prove mens rea under s 16B. Lord Bingham observed: Under s 16A, a defendant could be convicted even if the jury entertained a reasonable doubt whether he knew that the items were in his premises and whether he had the items for a terrorist purpose [at 190H].
Lord Bingham pointed out that this conclusion was influenced by the absolute nature of the guarantees under Art 6. Therefore, the DPP’s continuing decision to continue the prosecution of the defendants under ss 16A and 16B was declared to be unlawful. The House of Lords, in a cautious judgment, unanimously overturned the Divisional Court decision on the narrow ground that, under s 29(3) of the 1981 Act, the DPP’s consent to a prosecution is not
Convention.
The term he used to describe the area in which these choices might arise was the ‘discretionary area of judgment’. He recognised the difficulty that Art 6(2) is expressed in unqualified terms: It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is stated in terms which are unqualified, the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society.
(He gave the example of the ruling of the Court in Murray v United Kingdom (1994) 19 EHRR 193, 222, para 47.) Lord Hope also considered that in interpreting s 16A in the light of Art 6(2) the interests of the individual could be balanced against those of society and that in striking that balance the Convention
reviewable, or reviewable only in exceptional cases. Lord Hope
jurisprudence and that which is to be found from cases decided in other
considered the view that might be taken of the compatibility of s 16A
jurisdictions suggested that account might legitimately be taken of the
with Art 6(2). He said:
problems which the legislation was designed to address. He looked at
I see great force in the Divisional Court’s view that on the
the example of Salabiaku v France ((1988) 13 EHRR 379) in which it
natural and ordinary interpretation there is repugnancy
was found that, while Art 6(2) ‘does not ... regard presumptions of fact
[in s 16A]. To introduce concepts of reasonable limits,
or of law provided for in the criminal law with indifference’, it permits
balance or flexibility, as to none of which Art 6(2) says
the operation of such presumptions against the accused so long as the
anything, may be seen as undermining or marginalising
law in question confines such presumptions ‘within reasonable limits
the philosophy embodied in the straightforward provision
which take into account the importance of what is at stake and
that everyone charged with a criminal offence shall be
maintain the rights of the defence’. The Court was concerned with an
presumed innocent until proved guilty according to law.
Art in the Customs Code dealing with the smuggling of prohibited
But he went on to find that s 16A might be compatible with Art 6(2)
goods. Where possession of prohibited goods was established, the
bearing in mind the ‘strong adjuration’ of s 3 of the HRA. He
person was deemed liable for the offence of smuggling. The provision
considered that s 3 might require s 16A to be interpreted as imposing
appeared to lay down an irrebuttable presumption; the code did not
on the defendant an evidential, but not a persuasive (or ultimate),
provide expressly for any defence. But the Court held that there was no
burden of proof, although he found that this was ‘not the natural and
failure to comply with Art 6(2), because in practice the courts were
ordinary meaning of s 16A’. It was, however, he found, a possible
careful not to resort automatically to the presumption but exercised
meaning. Lord Hope took R v Killen [1974] NI 220 into account in
their power of assessment in the light of all the evidence. In coming to
support of the possibility of a flexible interpretation of s 16A. It was held
this determination, the Court’s acceptance that some presumptions
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against the accused might not infringe Art 6(2) appeared to rest partly on an application of the margin of appreciation doctrine, influenced by
(2)
what is the burden on the accused – does it relate to something
the notion of common standards, since such presumptions are common
which is likely to be difficult for him to prove, or does it relate to
across Europe.
something which is likely to be within his knowledge or to which he readily has access?;
Lord Hope noted that the guidance which was given in Salabiaku was applied by the Commission in H v United Kingdom Application No 15023/89, in which the complaint was that the burden on the accused in criminal proceedings to prove insanity on the
(3)
what is the nature of the threat faced by society which the provision is designed to combat?
Applying these tests, he found:
balance of probabilities was contrary to the presumption of innocence
It is not immediately obvious that it would be imposing
and in violation of Art 6(2). He also considered Bates v United Kingdom
an unreasonable burden on an accused who was in
Application No 26280/95, in which the complaint was that Art 6(2) had
possession of Arts from which an inference of
been violated by the presumption of fact in s 5(5) of the Dangerous
involvement in terrorism could be drawn to provide an
Dogs Act 1991 by which it is to be presumed that the dog is one to
explanation for his possession of them which would
which section 1 of that Act applies unless the contrary is shown by the
displace that inference. Account would have to be taken
accused. In the Bates case the Commission held that s 5(5) fell within
of the nature of the incriminating circumstances and the
reasonable limits, even in the light of what was at stake for the
facilities which were available to the accused to obtain
applicant, given the opportunity expressly provided to the defence to
the necessary evidence. Then there is the nature of the
rebut the presumption of fact, and that s 5(5) was applied in a manner
threat which terrorism poses to a free and democratic
compatible with the presumption of innocence.
society ... It is often indiscriminate in its effects, and
Lord Hope concluded that, although Art 6(2) is expressed in
sophisticated methods are used to avoid detection ...
absolute terms, it is not regarded as imposing an absolute prohibition
Society has a strong interest in preventing acts of terrorism
on reverse onus clauses, whether they be evidential (presumptions of
before they are perpetrated ... s 16A is designed to
fact) or persuasive (presumptions of law). In each case, the question will
achieve that end.
be whether the presumption is within reasonable limits. In support of
Lord Hope left open the question whether s 16A did in fact strike the
his balancing approach, he referred to Lord Woolf’s findings in Attorney
right balance, taking these tests into account, but he clearly reached a
General of Hong Kong v Lee Kwong-kut ([1993] AC 951, 966). Lord
conclusion which differed sharply from that of Lord Bingham in the
Woolf explained the Canadian approach when applying the Canadian
Divisional Court in finding that Art 6(2) could be interpreted in such a
Charter of Rights and Freedoms; the matter is examined in two stages:
way as to permit the use of presumptions against the accused.
to see whether the provision in question has violated the presumption
The judgments in the House of Lords and in the Divisional
of innocence in s 11(d) of the Charter, and then to apply the limitation
Court, especially those of Lord Hope and Lord Bingham, are extremely
set out in s 1 of the Charter. Section 1 states that the rights and freedoms
significant since they give diverging indications as to the possible
which it guarantees are ‘subject only to such reasonable limits
approaches of the senior judiciary to the Convention rights. Lord
prescribed by law as can be demonstrably justified in a free and
Bingham’s approach may be termed activist or maximalist in the sense
democratic society’. The better approach to the Convention Lord Woolf
that he took a generous, robust approach to Art 6(2), while Lord Hope’s
said, in the context of the Hong Kong Bill of Rights, would be to avoid
may be termed minimalist since he took into account a decision,
the somewhat complex two stage approach which is involved in the
Salabiaku, which might be viewed as adverse to the efficacy of Art 6(2),
Canadian process of reasoning. However, he also said:
and failed to consider whether a different outcome might have been
In a case where there is real difficulty, where the case is
achieved in that case had it not been influenced by the margin of
close to the borderline, regard can be had to the
appreciation doctrine, based to an extent on an application of the
approach now developed by the Canadian courts in
notion of common standards.
respect of s 1 of their Charter. However, in doing this, the
These four decisions indicate possible approaches to the issues
tests which have been identified in Canada do not need
of minimalism or activism. Broadly speaking, three of them might be
to be applied rigidly or cumulatively, nor need the results
termed minimalist, and Lord Hope’s decision is of particular interest
achieved be regarded as conclusive. They should be
since it suggests that although the judiciary will not simply apply the
treated as providing useful general guidance in a case of
margin of appreciation doctrine, they may well develop a domestic
difficulty. This is particularly true in relation to what was
equivalent, even where, on its face the Convention guarantee is
said in R v Chaulk (62 CCC (3d) 193, 216–17) about
unqualified. In other words, in seeking to respond to the Convention in
proportionality, since it is the need to balance the
a minimalist fashion, the judiciary may ‘read down’ the rights. But the
interests of the individual and society which are at the
Lord Chief Justice’s activist approach in ex p Kebilene, if it takes hold
heart of the justification of an exception to the general
among the senior judiciary, would tend to ensure the genuine efficacy
rule.
of the rights.
Lord Hope went on to consider various tests which had been suggested by counsel which could be used in determining where the balance lies: (1)
what does the prosecution have to prove in order to transfer the
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The Human Rights Act and developments in counterterrorism and State surveillance by Helen Fenwick, Reader in Law, University of Durham The Human Rights Act 1998 is undoubtedly one of the most significant statutes ever passed in the UK and, even before it came fully into force, it began to have an effect on other legislation. Once the Act is in force, it will affect the actions of public authorities,
The interpretative obligation is arguably rendered stronger in
since they are bound by the rights it receives into domestic law. The
respect of subsequent legislation under s 19, a provision which bears
current government has also put in place a new, extremely
some similarity to a ‘notwithstanding’ clause, on the Canadian model.
comprehensive statutory framework for State surveillance and for
(Under this model, legislation can include a clause stating ‘this statute
counter-terrorism. The provisions are continued in the Regulation of
is to be given effect notwithstanding the provisions of the Canadian
Investigatory Powers Act (RIPA) 2000 and the Terrorism Act 2000. It is
Charter’.) When a Minister introduces a Bill into either House of
necessary for the new RIPA provisions to be in place as soon as possible
Parliament, he or she must make and publish a written statement to
since otherwise various practices of the police and security agents might
the effect either that in his or her view the provisions of the Bill are
be found to be incompatible with the Convention guarantees. This is true
compatible with the Convention rights, or that, although unable to
to a lesser extent of provisions of the Terrorism Act. However, although
make such a statement, the government wishes nevertheless to
the provisions of the two Bills were declared in Parliament to be
proceed with the Bill. Use of the latter statement would be bound to
compatible with the guarantees, this must remain a matter that will have
cause political embarrassment and, almost certainly, successful
to be determined in future. The RIPA is an intensely controversial Bill
applications to Strasbourg. It is therefore likely to be a very rare
which attracted wide ranging critical comment and which was amended
occurrence, probably arising only in time of war or national
quite significantly in the Lords. The Terrorism Bill was also amended in
emergency.
the Lords; crucially the definition of terrorism was radically altered. The
If a Minister makes a statement to the effect that the legislation
RIPA and the Terrorism Act are likely to come into force in late October
is compatible with the Convention, but subsequently it appears that
2000.
there is incompatibility, the judiciary would be likely to do their Although these two Acts were introduced either in order to meet
utmost to ensure compatibility, especially where parliamentary debate
the demands of the Convention or with those demands in mind, the
had proceeded on the assumption that the Bill was indeed compatible.
strong possibility arises that in certain aspects they have failed to meet
They could be said to be under a dual adjuration to do so, arising from
them.
both s 3 and the statement. It may be noted that the Terrorism Bill 2000 and the Regulation of Investigatory Powers Bill 2000 were
The Human Rights Act
accompanied by statements of compatibility although both contain a number of provisions of doubtful compatibility. If a court is unable to ensure compatibility it can, if of sufficient
The interpretative obligation
authority (s 4(5) provides that this applies to the House of Lords, the
The Act receives the European Convention on Human Rights into UK
Judicial Committee of the Privy Council, the Courts Martial Appeal
law. The Convention will have a lower status than pre-existing law since
Court; in Scotland, the High Court of Justiciary sitting otherwise than a
it cannot impliedly repeal other statutes. But, under s 3 of the Human
trial court, or the Court of Session; in England and Wales the High
Rights Act (HRA), the judiciary are placed under an obligation to ensure
Court or the Court of Appeal) make a declaration of incompatibility
that primary and subordinate legislation is compatible with the
under s 4. Under s 5(1), when a court is considering making a
Convention rights ‘so far as it is possible to do so’. If it not possible to do
declaration the Crown must be given notice so that it can, under s 5(2),
so, the court must merely apply the primary legislation under s 3(2)(b) or
intervene by being joined as a party to the proceedings. Section 3
the subordinate legislation if ‘primary legislation prevents the removal of
provides that the interpretative obligation does not affect the validity,
the incompatibility’ under s 3(2)(c). These provisions preserve not only
continuing operation or enforcement of any incompatible primary
parliamentary but executive power since they allow prerogative orders as
legislation, and this is equally the case under s 4(6) if a declaration of
well as primary legislation to override the Convention. (Under s
incompatibility is made. Section 4 means that ‘For the first time,
21(1)(f)(i), the term ‘primary legislation’ includes Prerogative Orders.)
Parliament has invited the judges to tell it that it has acted wrongly by
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legislating incompatibly with a Convention right’ (Feldman, D, ‘The
give effect to or enforce those provisions.
Human Rights Act and constitutional principles’ (1999) 19(2) LS 165, p
Section 6(2)(a) creates a strong obligation requiring public authorities to
187).
do their utmost to act compatibly. But it is not easy to reconcile s 3 with
If a declaration is made, s 10 will apply, allowing a Minister to make amendments to the offending legislation. However, the Minister is under no obligation to make the amendment(s) and may only do so if there are ‘compelling reasons’. In other words, the fact that a declaration of incompatibility has been made will not in itself provide a compelling reason. Schedule 2 provides two procedures for making a ‘remedial order’ which must, under s 20, be in the form of a statutory instrument. Schedule 2 para 2(a) and para 3 provide for a standard procedure whereby the Minister must lay a draft of the Order before Parliament, together with the required information – an explanation of the incompatibility and a statement of the reasons for proceeding under s 10 – for at least 60 days, during which time representations can be made to the Minister. It must then be laid before Parliament again and does not come into effect until it is approved by a resolution of each House within 60 days after it has been laid for the second time. The emergency procedure under Sched 2 para 2(b) and para 4 follows the same route, apart from the very significant provision for allowing the Minister to make the order before laying it before Parliament. Thus, the amendment can be made outside the full parliamentary process which would be required for primary legislation, but otherwise the responsibility for amending primary legislation remains firmly in parliamentary hands, retaining ‘Parliament’s authority in the legislative process’ (Ewing, K, ‘The Human Rights Act and parliamentary democracy’ (1999) 62(1) MLR 79, p 93).
s 6(2)(b), especially where the authority is under a dual adjuration, as it
Public and private bodies Under s 6, Convention guarantees are binding only against public authorities. Under s 6(3)(b), the term ‘public authority’ includes ‘any person certain of whose functions are functions of a public nature’ but does not include Parliament. The definition under s 6(3) is nonexhaustive and leaves open room for much debate on the meaning of ‘functions of a public nature’. Under s 6(5), ‘in relation to a particular act, a person is not a public authority by virtue only of s 6(3)(b) if the nature of the act is private’. This means that private bodies which cannot be brought within the definition are not bound by the Convention rights, although this does not mean that they are entirely unaffected by them; see the discussion of ‘horizontal effect’ below. Quasi-public bodies are in the same position when acting in relation to their private as opposed to their public function. Section 6 therefore creates two categories of body against which the Convention can be directly enforced: ‘pure’ public authorities which can never act privately, even in respect of matters governed by private law, such as employment relations, and quasi-public authorities which have a hybrid function. The third category, falling outside s 6, contains private bodies which have no public function at all. Obviously, an exception had to be made under s 6 in order to bring it into harmony with s 3 and to realise the objective of preserving parliamentary sovereignty, but it is argued that the method adopted may not fully succeed in so doing. Section 6(2) provides: ... sub-s (1) does not apply to an act if: (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to
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will be, increasingly, in future. If s 3 is applied to s 6(2)(b), it would suggest that, where an authority has a discretion to act to give effect to or enforce incompatible provisions, it should exercise its discretion against so doing, since otherwise it would not appear to satisfy s 3. There are a number of possible methods of using the Convention against a public authority or a hybrid body acting in its public capacity under s 7(1) which provides: A person who claims that a public authority has acted or proposes to act in a way which is made unlawful by s 6(1) may: (a)
bring proceedings against the authority under this Act in the appropriate court or tribunal; or
(b)
rely on the Convention right or rights concerned in any legal proceedings.
The individual could seek to bring judicial review proceedings under s 7(1)(a). The ground of review would be on the basis of illegality in that the authority has breached s 6. (See Craig, P, Administrative Law, 3rd edn, 1994, London: Sweet & Maxwell.) The alternative ground would be ultra vires on the basis that, once the legislation in question was interpreted compatibly with the Convention under s 3, it did not give the authority the right to breach it as it has done. (The approach adopted in R v Lord Chancellor ex p Witham [1998] QB 575.) As Leigh and Lustgarten have pointed out, the judicial review procedure may not be adequate as a means of determining the crucial issue of proportionality. (Leigh, I and Lustgarten, L, ‘Making rights real: the courts, remedies and the Human Rights Act’ (1999) 58(3) CLJ 509.) It is less likely in judicial review proceedings that discovery would be ordered or cross-examination allowed. Therefore, there are inadequacies in its fact finding role. It is also possible that proceedings could be brought for breach of statutory duty – the duty under s 6. The possibility of creating what has been termed a ‘constitutional tort’ of breach of Convention rights has been left open by the HRA and by the Lord Chancellor in Parliamentary debate. (HL Debs vol 585 cols 853–56, 24 November 1997.) Other existing tort actions such as false imprisonment which are coterminous with Convention rights (in that instance, Art 5) could be brought against public authorities under s 7(1)(a) with a view to expanding the scope of the action by reference to the right. (Such actions would also of course be available against purely private bodies. See, further, Phillipson, G, ‘The Human Rights Act and the common law’ (1999) 62 MLR 824, esp pp 834–40.) Under s 7(1)(b), the Convention guarantees could afford a defence in criminal proceedings where it could be argued that a public authority had acted unlawfully under s 6. They could also be used to afford a defence in civil proceedings where the plaintiff was a public authority.
Remedies Under s 8(1), a court which has found that an act or proposed act of a public authority is unlawful is authorised to grant ‘such relief or remedy or ... order within its powers as [the court] considers just and appropriate’. Under s 8(2), damages cannot be awarded in criminal proceedings but this leaves open the possibility that they could be awarded in judicial review as well as other civil proceedings. However, traditionally, the courts have been reluctant to award damages in public law cases and s 8(3) of the HRA 1998 encourages the continuance of
C I V I L
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this tradition in requiring consideration to be given first to any ‘other
intention of suggesting that matters that can properly be dealt with
relief or remedy granted or order made’, the consequences of the
under normal public order powers should in future be dealt with under
court’s decisions and the necessity of making the award. Under s 8(4),
counter-terrorist legislation’ (para 3.18). But, once special arrest and
the court in deciding to award damages must take into account the
detention powers are handed to the police they can be used, at their
principles applied by the European Court of Human Rights. This
discretion, if a particular person or group falls, or appears to fall, within
suggests that awards are likely to be low.
the new definition. Some direct action against property by animal rights or environmental activists may well fall within it. The new definition
The Terrorism Act 2000 When the Home Secretary introduced the Terrorism Bill to Parliament in December 1999, he made a declaration of its compatibility with the Convention rights under s 19(1)(a) of the HRA, but obviously the courts remain at liberty to find incompatibility. The justification for the new provisions is that they are needed at the present time to combat the threat from three groups. The first of these comprises those Irish splinter groups opposed to the peace process. (In the paper, Legislation Against Terrorism, Cm 4178, the government finds: ‘... there are small numbers who remain opposed to peace and wedded to violence. So, even though the context is of a general movement towards lasting peace in Northern Ireland, it is too soon to be confident that all terrorism has been abandoned.’) The second comprises ‘international terrorists’. The Consultation Paper preceding the Act notes that, across the world, there has been a rise in terrorism motivated by ‘religious idealism’. (Lord Lloyd’s Report (1996), which influenced the paper, draws attention to ‘possible future changes in the terrorist threat and to lives and property in the UK; changes which mirror what is happening across the world’ (para 2.4).) Both these groups are already covered under the existing legislation, although not all the special provisions are applied equally to international terrorism. The threat is apparently from the new, third, group, on which the case for new legislation must rest. This group comprises of a wide and disparate range of domestic groups other than those connected with Irish terrorism, such as animal rights or environmental activist (‘The threat from some marginal but extreme elements of the animal rights movement continues to be of more concern to the Government [than Scottish or Welsh nationalist groups]’ (para 3.10)) and, possibly, anti-abortion groups (para 3.10). The definition put forward in the Bill was originally extremely wide. Clause 1(1) provided: In this Act, ‘terrorism’ means the use or threat, for the purpose of advancing a political, religious or ideological cause, of action which: (a)
involves serious violence against any person or property;
(b) (c)
endangers the life of any person; or
will also allow the currently non-criminal actions of a number of persons to be re-designated terrorist since the special terrorist offences will apply to a wide range of persons, including those who have some contact with persons designated ‘terrorist’. The strong likelihood is that only a minority of the groups which could fall within s 1 will be proscribed, at least in the initial years. Unlike the Prevention of Terrorism Act (PTA) regime in which the special powers were used in practice against proscribed groups only, the special powers (apart from those specifically linked to proscription) can be used against any group falling within the broad definition of terrorism. Therefore, a number of persons may unwittingly fall within the ambit of the special terrorist offences. One controversial power, that of exclusion, is to be abolished. Section 5 of the PTA currently provides for exclusion from Great Britain, s 6 for exclusion from Northern Ireland and s 7 for exclusion from the whole of the United Kingdom. These powers meant that Northern Irish citizens could be forced to go back to Northern Ireland; there was little reciprocity in terms of excluding Irish citizens to Britain. The powers have been used with increasing infrequency: there were 248 orders in force in 1982; by the end of 1996, there were 24. In 1997, the Home Secretary considered that they were no longer effective in combating terrorism and revoked the 12 which remained. The exclusion powers are not currently in force: they were lapsed with effect from midnight on 21 March 1998, although until repeal of the PTA by the Act of 2000 they could be reactivated. The intention is that virtually all the extensive range of special terrorist offences will be retained under the new statute and that most of them will apply to the vast range of groups which could, potentially, fall within the new definition. Under Pt VII, some will continue to apply only to Irish rather than international terrorist groups, while, depending on additions to the list of proscribed groups, some proscription-related offences may initially apply only to Irish groups. Once the range of terrorist offences available are considered in relation to, for example, environmental or animal rights groups, the potentially immensely broad impact of the new legislation becomes apparent, as does the possibility that parts of it may infringe certain of the Convention rights, most notably Arts 10, 11, 6 and 5, under the HRA.
creates a serious risk to the health or safety of the public or a section of the public.
The definition was attacked in Parliament as creating a ‘fatally flawed’ Bill. However, amendments forced on the government in the Lords led
The Regulation of Investigatory Powers Act 2000
to the inclusion of the notion of intimidation of a section of the public
The Labour government introduced the Regulation of Investigatory
or of the need to show that the intention was to influence the
Powers Bill 2000 (it was introduced into the House of Commons on 9
government. Nevertheless, the definition remains broad since many
February 2000. The government had previously published a
forms of action are designed to influence the government.
Consultation Paper Interception of Communications in the UK, Cm
The new definition will tend to allow many activities, currently
4368, published 22 June 1999. The responses to the Paper are available
criminal, to be re-designated as terrorist. Danger to property, violence
at www.homeoffice.gov.uk/oicd/conslist2htm with a view to providing
or a serious risk to safety that can be described as ‘ideologically,
a comprehensive statutory scheme for State surveillance, which would
politically, or religiously motivated’ may arise in the context of many
meet the requirements of the Convention under the HRA. The RIPA,
demonstrations and other forms of public protest, including some
which will repeal most of the Interception of Communications Act
industrial disputes. The government stated in the Paper that it had ‘no
1985, places most forms of State surveillance on a statutory basis and
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will, therefore, operate in tandem with the Police Act 1997. It also
thought necessary to obtain under the warrant could reasonably be
extends to most forms of interception, including those outside the
obtained by other means. This question also had to be asked under s
current regime.
2(3). But, s 5(2) implies that further matters should be considered. Clearly, s 5(2) was introduced in an effort to meet the proportionality
Interception of communications The Interception of Communications Act 1985 only covered certain limited means of intercepting communications. It did not cover listening devices or all forms of telephone tapping. It covered the interception of only one means of telephonic communication – communication via the public telecommunications system; this covered telephone, fax, telex and any other data transmission on the system, such as email. (The government at present maintains that some use of email is covered by the 1985 Act where public telephone lines are used.) Given the immense increase in the use of mobile phones, pagers, cordless phones, the potential for email transmission outside the telecommunications system, and the growth of internal telephone systems over recent years, the Act became increasingly marginalised. In introducing the new, far more comprehensive scheme, therefore, the Labour government sought to bring all forms of interception within it. The Regulation of Investigatory Powers Act 2000 defines the term a ‘public telecommunications system’, used in s 2(1) of the 1985 Act, much more widely to include all such systems which provide or offer a telecommunications service to the public or part of it involving the use of electrical or electro-magnetic energy. Under s 2(1), ‘telecommunications system’ covers any system ‘which exists (whether wholly or partly in the UK or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical or elector-magnetic energy’. This definition would cover all the forms of communication, including email, mentioned above, provided by any private company. (These would include, for example, BT, Orange and Vodaphone. It would also cover other providers of email systems such as Freeserve or Yahoo.) Section 2(1) also covers private telecommunications systems – most obviously those confined to
requirement under Art 8(2). The warrants must be personally signed by the Secretary of State or, in urgent cases or cases under the fourth ground by ‘a senior official’ with express authorisation from the Secretary of State. This new procedure is based on the model provided by the 1985 Act in that it allows for administrative oversight but maintains executive authorisation of interception; it may therefore be contrasted with that in the US, where prior judicial authorisation is required (Berger v NY 388 US 41 (1967)) and with that in Denmark where authorisation is by an investigating magistrate (Art 126m of the Code of Criminal Procedure). The request for the warrant may be made by a number of persons from a non-exhaustive list. They include: the Director General of the Security Service, the Chief of the Secret Intelligence Service the Director of GCHQ, the Director General of the National Criminal Intelligence Service, the Commissioner of Police of the Metropolis; the Chief Constable of the Royal Ulster Constabulary, Chief Constables in Scotland (‘Of any police force maintained under or by virtue of s 1 of the Police (Scotland) Act 1967’), the Commissioners of Customs and Excise; a Permanent Under Secretary of State in the Ministry of Defence; the relevant person for the purposes of any international mutual assistance agreement. On Second Reading of the Bill in the Commons, this list was criticised by the Conservative Opposition on the basis that the list was not extensive enough. It was argued that the Benefits Agency of the DSS (HC Debs cols 778 and 831, 6 March 2000) and the Inland Revenue (HC Debs col 821, 6 March 2000) should be added to it.
Other forms of surveillance
a particular company or body – although its coverage of private systems
Part II of the Regulation of Investigatory Powers Act provides a
is limited to those which are attached to the public system directly or
comprehensive statutory basis for the expanding use of forms of
indirectly. (Its coverage of private systems is a direct response to Halford
surveillance and of undercover agents or informers. (The use of covert
v UK [1997] IRLR 471.) Its wording appears to be wide enough to cover
surveillance together with other targeting methods, including the use of
most forms of telecommunication currently available, apart from
informers, has expanded rapidly and is seen as immensely useful by the
entirely self-standing private systems (such as Intranet systems not
police: see Policing with Intelligence HMIC Thematic Inspection
connected to any public system), although not necessarily those which
Report, 1997/99.) Unlike Pt III of the Police Act 1997, it covers a very
may arise in the near future.
wide range of bodies, including the security and intelligence services. It
The 1985 Act provided very wide grounds under s 2(2) on
also covers a much wider range of circumstances. The new framework
which warrants for the purposes of interception could be authorised by
therefore represents a very significant and dramatic step forward in
the Secretary of State, and the same grounds appear in the Regulation of
terms of openness and accountability since, previously, there were no
Investigatory Powers Act 2000, with the addition of the purpose of
requirements of oversight at all in respect of the use of informers (in
giving effect to the provisions of any international mutual assistance
relation to police use of informers, there are unpublished, internal
agreement. This ground relates to Art 16 of the EU draft Convention on
ACPO guidelines on the use of certain categories of informers:
Mutual Assistance in Criminal Matters. (The EU draft Convention on
Informers Who Take Part in Crime Home Office Circular No 97/1969,
Mutual Assistance in Criminal Matters (5202/98-C4-0062/98) was set
now to be found in para 1.92 of Home Office Consolidated Circular on
out in the EU-FBI telecommunications plan adopted by the EU in
Crime and Kindred Matters No 35/1986. These guidelines are being
January 1995. Under ENFOPOL, the information required includes
replaced by a published Code), or in respect of some of the other forms
email addresses, credit card details, passwords, IP addresses, customer
of surveillance discussed below.
account numbers.) Its purpose is to require satellite operators based in the UK to provide technical assistance to another Member State.
Part II creates a distinction between what it terms ‘directed’ and ‘intrusive’ surveillance under s 26. Intrusive surveillance can occur in
The RIPA, however, contains a stronger proportionality
more limited circumstances and the authorisation requirements are
requirement than that contained in s 2(3) of the 1985 Act. The Secretary
stricter. Under the tortuous definitions provided, ‘intrusive surveillance’
of State ‘shall not’ issue an interception warrant unless he believes that
occurs when a surveillance device or an individual is actually present
the conduct it authorises ‘is proportionate to what is sought to be
on residential premises, or in a private vehicle, or it is carried out by
achieved’. This includes asking whether the information which it is
such a device in relation to such premises or vehicle without being
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present on the premises or vehicle. If the device or person is not on the
1997 and 2000 Acts.) However, the arrangements for intrusive
premises or vehicle, it is not intrusive surveillance unless ‘the device is
surveillance do not in themselves appear to subvert those under the
such that it consistently provides information of the same quality and
1997 Act. Subversion has occurred more subtly, due to the overlap
detail as might be expected to be obtained from a device actually
between directed surveillance and s 97 of the 1997 Act.
present on the premises or in the vehicle’ (s 26(5)). ‘Residential’ is
Under s 32(3) of the RIPA, authorisation of intrusive surveillance
defined in s 48(1) as premises used as living accommodation, while
is on the same grounds as for the interception of communications and a
‘premises’ includes movable structures and land. The definition
very similar proportionality requirement is introduced under s 32(2).
expressly excludes common areas of residential premises and clearly
‘Serious crime’ is defined in s 81(3) in substantially the same terms as in
does not cover office premises (s 48(7)(b)). Under s 26(2), all covert
s 93(4) of the 1997 Act. Authorisations for such surveillance are granted
surveillance is directed surveillance if it is not an immediate response
by the Home Secretary under s 41 or, for police or customs officers, by
and it is undertaken for the purposes of a specific investigation, and in
senior authorising officers, who are the highest ranking police officers in
order to obtain private information about a person, even if he is not
Britain. (Under s 32(6), they include: the Chief Constable of every
identified in relation to the investigation.
police force outside London in England, Scotland and Wales; the
‘Directed’ surveillance and the use of a covert human
Commissioner and Assistant Commissioners of the Metropolitan Police;
intelligence source may be authorised on the same grounds, under ss
the Commissioner of Police for the City of London; the Chief Constable
28 and 29, respectively. The grounds are far wider than those applying
and Deputy Chief Constable of the Royal Ulster Constabulary; the
to the interception of communications or under Pt III of the Police Act.
Director Generals of the National Criminal Intelligence and the
The grounds under s 5 of the RIPA are included, expressly or impliedly,
National Crime Squad; and designated persons. Any person holding the
but the other grounds include those for:
rank of Assistant Chief Constable in that Squad who is designated for
... preventing or detecting crime or of preventing disorder,
the purposes of this paragraph by that Director General and any
the interests of public safety; for the purpose of protecting
customs officer so designated by the Commissioners of Customs and
public health; for the purpose of assessing or collecting
Excise.) There is also provision for the grant of authorisations in a case
any tax, duty ... or other ... charge payable to a
of urgency by persons of almost equally high rank, other than the senior
government department; or for any other purpose
authorising officer. (Under s 34(4), such persons are of a rank almost as
specified for the purposes of this sub-section by an order
high as such officers. In the case of police forces, this means a person
made by the Secretary of State.
holding the rank of Assistant Chief Constable or in the case of the
This order must be approved by Parliament.
Metropolitan or London forces, of Commander.) The provisions for
Proportionality requirements are introduced under s 28(2) and
urgent and non-urgent authorisations under ss 33, 34, 35 and 36 mirror
s 29(2) to the effect that the authorising person must believe that the
those under the Police Act in that, under s 35, notice must be given to a
authorisation or authorised conduct is ‘proportionate to what is sought
‘Surveillance Commissioner’ and, under s 36 the authorisation will not
to be achieved by carrying it out’. This might include asking whether
take effect until it has been approved, except where it is urgent and the
the information which it is thought necessary to obtain by these means
grounds for urgency are set out in the notice, in which case the
could reasonably be obtained by other means. Clearly, in common
authorisation will take effect from the time of its grant. Under s 38,
with their equivalents in Pt I, these provisions were introduced in an
senior authorising officers can appeal to the Chief Surveillance
effort to comply with Convention requirements, under Art 8(2). The
Commissioner against decisions of ordinary Surveillance
authorisation is granted by a ‘designated person’ under ss 28 and 29.
Commissioners. The Commissioners have responsibility for the
Under s 30, they are ‘the individuals holding such offices, ranks or
destruction of material obtained by surveillance, under s 37, but there is
positions with relevant public authorities as are prescribed for the
no requirement that material no longer needed for proceedings and no
purposes of this sub-section by an order’ made by the Secretary of State.
longer subject to an authorisation must be destroyed.
The Secretary of State can himself be a designated person under s 30(2). The ‘relevant public authorities’ include the police, the security and intelligence services, Customs and Excise, the armed forces, and any
Conclusions
other authority to be designated by order of the Secretary of State. Thus,
It is clear from the above discussion that this is a period of great change.
the security and intelligence services can undertake directed
The change is due not only to the inception of the HRA, but also to the
surveillance or use covert sources on grant of a warrant from a member
legislation that, in a sense, it drew in its wake, bearing on the powers of
of the services, with no independent check.
State agents to invade liberty. The inevitable consequence of the HRA
The highly significant question as to the persons within the
was the need for greater regulation of the central areas of State power.
organisations indicated in s 30 entitled to grant the authorisations is
In the case of surveillance, it was clear that a statutory basis was needed
therefore left unresolved and entirely in executive hands. The equally
for the exercise of a number of powers which had no such basis – due
significant determination question as to the further public authorities
to the Convention requirement that interferences with rights must be
which might be added to the list is also placed in the hands of the
prescribed by law. In the case of the new counter-terrorism measures, a
Home Secretary, although subject to Parliament’s approval.
statutory basis which would meet Convention requirements was
‘Intrusive’ surveillance, as surveillance invariably involving the
needed in order in order to extend the special powers to new groups.
creation of existing civil or criminal liability, is treated somewhat
But, ironically, although these two statutes therefore give an appearance
differently. Since some surveillance covered by s 97 of the Police Act
of meeting those requirements, it is possible that they may fail to do so
would also amount to intrusive surveillance, any differences between
in a number of respects. Both statutes increase the powers of the police
the procedures under the two statutes are significant since, as far as the
and the intelligence services in a manner which has immense
police are concerned, the less restrictive route is likely to be used. (It
implications for individual freedom. The HRA may, however, lead to a
may be noted that s 33(5) provides for ‘combined authorisations’,
tempering of their effects.
where the authorisation combines authorisations given under both the
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Case notes
knew the allegations to be false or was indifferent to their veracity.
by Helen Fenwick, Reader in Law, University of Durham
the media which would allow them to impart information, albeit
Thus, the Law Lords established a new situation to which qualified privilege would attach. The key question was when there would be a ‘duty’ placed on possibly erroneous. Their Lordships laid down a very broad and flexible test which asked simply whether, in all the circumstances, the public interest required publication of the material in question, an approach
A landmark decision for press freedom?
which was said to be in harmony with Strasbourg jurisprudence on Art 10. This would require examination of matters such as attempts made by the media to verify the story and whether they had made any
Reynolds v Times Newspapers (1999) judgment 28 October, HL, available from the House of Lords website: www.publications.parliament.uk/pa/ld/ldjudinf.htm
Facts Albert Reynolds, former Irish Prime Minister, brought a libel action
attempt to include the response of the defamed person to the allegations with the aim of encouraging ‘responsible journalism’ (Reynolds, p 13). The Law Lords found that in the re-trial the publication would not be protected by qualified privilege; therefore that aspect of the case would not be allowed to be re-opened at the re-trial.
against The Sunday Times in respect of allegations it had made that he
Comment
had lied to the Dail. The jury found that the defamatory allegations
This case has been viewed in some quarters as a landmark decision for
were not true and therefore the defence of justification failed. They
press freedom, since it makes it clear that a defence of qualified
found that Mr Ruddock, editor of The Times, had not acted maliciously
privilege may be available to the media when, in reporting on matters
in writing or publishing the words complained of and that therefore the
in the public interest, they make an innocent mistake which damages a
defence of qualified privilege, a matter for the judge, could succeed.
reputation. However, it fails to give sufficient guidance on the crucial
The judge awarded damages of one penny. Having heard submissions
question of when the qualified privilege will arise. As Alastair Brett,
on the issue of qualified privilege, he found that the publication was not
Legal Manager of Times Newspapers put it: ‘... in practice, the case
privileged. Mr Reynolds appealed, contending that the judge had
leaves newspapers and television companies fumbling in the dark for
misdirected the jury in certain respects. The defendants cross-appealed
the defence of qualified privilege.’ Therefore, although it is a step in the
against the judge’s decision on the qualified privilege point. The Court
right direction, which brings the UK somewhat closer to the position in
of Appeal agreed as to the misdirections and ordered a new trial; they
other common law jurisdictions, it may not make much difference in
further found that the defendants would not be able to rely on qualified
practice since the uncertainty the test generates will tend to have a
privilege at the new trial. The defendants appealed against this finding
‘chilling effect’ on the media.
to the House of Lords.
Held
Search warrants: duties of police and magistrates
The Law Lords had to decide when the media are entitled to some protection from a libel action, by way of qualified privilege, when they make an innocent mistake which damages a politician’s reputation.
R v Chesterfield Justices Chief Constable of Derbyshire ex p Bramley (1999) Publications on the Internet, 5 November 1999, DC
This defence has received some common law recognition in certain categories of situation, such as the giving of employment references. The categories, according to Lord Nicholls, have not been regarded as
Facts
closed.
Police officers, purportedly acting in accordance with the warrants, The Law Lords showed an appreciation of the need to protect
press freedom:
seized documents subject to legal professional privilege. An application for judicial review of the decision of the magistrates sitting at
... the court should be slow to conclude that a publication
Chesterfield on 7 January 1999 to issue the search warrants in respect of
was not in the public interest and, therefore, the public
two premises pursuant to s 26 of the Theft Act 1968 was made. It was
has no right to know, especially when the information is
conceded before the hearing that the warrants should not have been
in the field of political discussion.
issued because it had been made clear to the magistrates that the police
The Law Lords said that if the press has a ‘duty’ to report something as
had not been looking for stolen goods but were looking for documents
‘the eyes and ears of the people’, and readers/listeners have a
as part of an investigation into an alleged fraud. It was also conceded
commensurate ‘interest’ in receiving it, then the occasion should be
that, the warrants having been obtained on an inappropriate basis, the
covered by qualified privilege. The defence means that mistakes, even
searches and seizures were unlawful. A settlement had been agreed as
though damaging to reputation, will not lead to liability so long as the
to damages and the documents recovered. The applicant still sought a
newspaper or television company does not make them maliciously or
declaration that the entry, search and seizure by the police officers at
recklessly. In other words, the defendant can succeed if he cannot
the two premises was unlawful. It was contended on behalf of the Chief
prove the truth of the defamatory allegations but can establish the
Constable that if the warrants had been presented to the magistrates in
privilege. The plaintiff can succeed if he can show that the defendant
the proper form, under s 8(1) of the Police and Criminal Evidence Act
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1984 (PACE), the warrants would still have been issued and executed in
question are subject to legal professional privilege, since they are in the
the same way. The issue for the instant court was what in law and what
best position to do so. Otherwise, this gap in PACE undermines the
in practice should be done where any question arose as to whether
protection afforded by legal privilege and gives insufficient weight to
documents or information were truly subject to legal professional
the need to protect the special relationship between solicitor and client.
privilege.
Held If a constable making an application for a warrant did not volunteer information regarding legal privilege, then the magistrate had to inquire if the material sought was subject to legal professional privilege. A
Public protest and aggravated trespass Director of Public Prosecutions v Barnard and Others (1999) The Times, 9 November, judgment 15 October 1999, QBD
warrant could not be issued if there were reasonable grounds for believing that the material sought included items subject to legal professional privilege. The criteria set out in s 8(1) of PACE were directed to the state of mind of the magistrate when being asked to issue a warrant. The police officer was not required to be satisfied that there were reasonable grounds for believing that the material sought did not consist of, or include, items subject to legal professional privilege. Clearly, a police officer in executing a warrant must know its purpose and must not go further than was necessary to achieve that purpose. An officer could seize items subject to legal privilege if he had no
Facts On 31 October 1997, the defendants came onto land at an opencast site in Derby in order to protest against open cast mining. The information against them alleged that having trespassed on land in the open air at Doe Hill Quarry opencast site, Derby, they then, in relation to a lawful activity of open cast mining which persons were about to be engaged in on that land, did an act of unlawfully entering on that land, intended by them to have the effect of intimidating those persons so as
reasonable grounds for believing that the item in question was so
to deter them from engaging in that activity, or obstructing or disrupting
subject. Whether or not the constable had such grounds at the time of
that activity, contrary to s 68(1) of the Criminal Justice and Public Order
seizure was a question of fact to be decided in the context of any given
Act 1994.
case. A constable who had seized items under s 8(2) of PACE, which
Section 68 of the 1994 Act provides:
were later found to be outside the scope of the warrant and not covered
(1)
A person commits the offence of aggravated
by s 19 of PACE, had no defence to an action for trespass to goods
trespass if he trespasses on land in the open air and,
based on unjustified seizure. In order to defend the ‘right to privacy’ the
in relation to any lawful activity which persons are
words of the statute should be strictly adhered to. A constable was not
engaging in or are about to engage in on that or
bound to accept at face value a claim to legal privilege. A seizure was
adjoining land in the open air, does there anything
not illegal when the information that the item obtained was subject to
which is intended by him to have the effect:
legal privilege was given after the seizure, so long as the officer had no
(a) of intimidating those persons or any of them so
reasonable grounds for believing the item to be so at the time it was
as to deter them or any of them from engaging in that activity;
taken. However, the violation of the legal privilege by making use of the privileged information would be unlawful. In the instant case if the
(b) of obstructing that activity; or
warrants had been obtained pursuant to s 8(1) of PACE there would
(c) of disrupting that activity.
seem to be no grounds for a complaint, as there was nothing searched or seized that was outside the scope of the warrant or that the officers had reason to believe to be subject of legal privilege. All documents subject to legal privilege had been returned. Therefore no order of certiorari or any declarations sought would be made. The application was dismissed.
Comment
Held The Queen’s Bench Divisional Court heard the appeal by way of case stated by the prosecution against the decision made by the Stipendiary Magistrate to dismiss the case and refuse to allow any amendment to the informations preferred against the defendants. Lord Justice Laws found that the magistrate had adopted the reasoning of Lord Justice Schiemann in Winder and Others v Director of Public Prosecutions
It is clear that a search warrant should not be issued if there are
((1996) The Times, 14 August) that three elements were required to
reasonable grounds for believing that the material sought includes items
establish the offence of aggravated trespass: namely, trespass, an
subject to legal professional privilege. The magistrate is under a duty
intention to disrupt a lawful activity and an act done towards that end.
under s 8, as this decision makes clear, to ascertain whether this is the
The magistrate found that as the allegation in the informations that the
case; he or she should not act as a rubber stamp for the police. But this
respondents ‘unlawfully entered on land’ alleged no more than that
decision would seem to suggest that an officer need make no or little
they had trespassed, and was not capable of amounting to the second
effort to ascertain whether there were reasonable grounds for believing
aggravating act required by the words in s 68(1) ‘does there anything
that the material sought is subject to legal privilege. Clearly, this places
which is intended by him to have the effect’, the informations disclosed
magistrates in a difficult position since the police officers may be their
no offence known to law.
only source of information and they may feel under some pressure to
The magistrate refused an application by the prosecution to
issue the warrant, especially if the officers view the case as of urgency.
amend the informations to allege the act of ‘unlawfully occupying the
There seems to be an argument for reading into PACE an implied
site in company with numerous other people’ on the ground that it
requirement that police officers should take steps to satisfy themselves
would still not have disclosed an offence, as occupation of the site was
that there are no reasonable grounds for thinking that the items in
the act of trespass, and not an additional act aggravating that trespass.
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Reference to the number of people was no more than an indication that some were trespassing
Public protest and breach of the peace
Laws LJ found that the magistrate was clearly correct in finding the original information to be defective. Proof was required of trespassing on land in the open air and of doing a distinct and overt act
Peterkin v Chief Constable of Cheshire (1999) The Times, 16 November
other than the act of trespassing which was intended to have the effects specified under sub-ss (a)–(c) of s 68(1). That information alleged no such separate distinct act. Unlawful occupation could equate to no more than the original trespass, but there might be circumstances where
Facts Peterkin, a hunt protester, had access to intelligence that told him when
it could constitute the second act, other than trespass, required under
and where the Cheshire Hunt was to meet near Macclesfield in
the offence. However, a bare allegation of occupation was insufficient.
February 1995. He was making his way to the hunt in a convoy of
It had to be supported by particulars of what the defendant was actually
vehicles carrying other protesters when he was arrested for conduct
doing, and the occupation had to be distinct and overt from the original
likely to cause a breach of the peace. The arresting officer said that he
trespass. The proposed amendment would have disclosed an offence
anticipated that Peterkin and the other protesters would enter private
under s 68(1) of the 1994 Act. However, it was doubtful whether it
land, causing a serious breach of the peace. Peterkin argued that he
would have been right to allow the amendment where the original
was arrested for merely walking on a country lane, half a mile from
information disclosed no offence at all, and the amendment would alter
where the hunt was taking place, and was not in sight of the hunt at the
the factual particulars of the information making it one different in kind
time.
from the original. An application in such circumstances should be very
Peterkin claimed unlawful arrest, false imprisonment and
carefully considered. It would not have been appropriate to allow the
assault and battery against Cheshire police on the basis that they had no
amendments and, accordingly, the appeal would be dismissed. Potts J
legal grounds for the arrest. Therefore, any actions used to carry out the
agreed.
arrest, such as restraint, would be unlawful.
Comment This decision is to be welcomed, from the point of view of allowing public protest, as reiterating that the offence under s 68 consists of distinct elements which must all be shown to be present. Section 68, although perceived by civil libertarians as draconian, was not intended to criminalise simple trespass. But, the potential blurring of the distinction between the first two elements, suggested by Laws LJ, that
Held Manchester County Court found that there were no reasonable grounds to arrest Peterkin as there was no apprehension or imminent threat of any breach of the peace. They awarded him £3,500 in damages with costs.
for the purposes of the offence of aggravated trespass, the occupation of
Comment
land could constitute an act intended to intimidate, obstruct or disrupt,
This decision re-affirms the need to show that a breach of the peace is
if it was distinct from a mere act of trespass, might lead to confusion as
about to occur. This requires an element of immediacy. It may suggest
to the difference between simple and aggravated trespass. The
that there is a growing tendency at present to narrow down the doctrine
circumstances in which an occupation of land will be viewed as
of breach of the peace (see, also, Redmon-Bate v DPP (1999) The
distinct from a trespass on land are unclear. Contrary to Sir John Laws,
Times, 28 July). This tendency may be compared with the tendency to
view as expressed in relation to the proposed amendment to the
widen the doctrine during the miners strike in the mid-80s.
information, the mere fact that the defendants unlawfully (that is, committing the tort of trespass) occupied the site in company with numerous other people does not necessarily mean that the offence under s 68 is made out unless the group do there anything which, in relation to others engaging in a lawful activity, is intended to have the effect: (a)
of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity;
(b)
of obstructing that activity; or
(c)
of disrupting that activity.
In Moss v McLachlan [1985] IRLR 76, a group of striking miners were stopped by the police a few miles away from a number of collieries; the police told them that they feared a breach of the peace if the miners reached the pits and that they would arrest the miners for obstruction if they tried to continue. After some time, a group of miners tried to push past the police, were arrested and convicted of obstruction of a police officer in the course of his duty. Their appeal on the ground that the officers had not been acting in the course of their duty was dismissed. It was said that there was no need to show that individual miners would cause a breach of the peace, nor even to specify at which
If a large group walked onto land and engaged in a peaceful sit-in
pit disorder was expected. A reasonable belief that there was a real risk
without making any effort to approach the persons the protest was
that a breach would occur in close proximity to the point of arrest (the
aimed at, it is unclear that any of the effects mentioned above could be
pits were between two and four miles away) was all that was necessary.
said to have occurred. The terms are ambiguous but bearing Arts 10
The current trend away from this very broad interpretation of
and 11 (which protect freedom of expression and of peaceful assembly)
the doctrine may be encouraged due to two decisions of the European
of the European Convention on Human Rights in mind, they should be
Court of Human Rights: Steel v UK [1998] Crim LR 893 and McLeod v
interpreted strictly.
UK (1999) judgment 23 September 1998, available from the Court’s
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C I V I L website: www.dhcour.coe.fr.
Power to punish behaviour contrary to a good way of life not ‘prescribed by law’ Joseph Hashman and Wanda Harrup v United Kingdom Application 25594/94, 25 November 1999, ECHR
Facts In March 1993, the applicants who were hunt saboteurs, disturbed the Portman Hunt and on 7 September 1993 they were bound over to keep the peace and to be of good behaviour in the sum of £100. They appealed to the Crown Court in Dorchester. H was found to have blown a hunting horn and W was found to have shouted at hounds. The court considered that this behaviour had been a deliberate attempt to interfere with the hunt, and that the applicants’ actions had been unlawful and had exposed hounds to danger. It considered, however, that as there had been no violence or threat of it, there had been no breach of the peace. The behaviour was found to have been contra bonos mores. The applicants were bound over ‘to be of good behaviour’ for a period of one year.
Held The applicants applied to the European Commission on Human Rights under Arts 10, 11 and 5. The case was declared admissible under Arts 10 and 11. The applicants contended that the concept of behaviour contra bonos mores was so broadly defined that it did not comply with the requirement, in Art 10(2) of the Convention, that any interference with freedom of expression must be ‘prescribed by law’. They also claimed that even if the interference was ‘prescribed by law’, the binding over in this case was a disproportionate interference with their
L I B E R T I E S
freedom of expression. The Court found that, whilst the applicants’ protest had taken the form of impeding the activities of which they disapproved, it nonetheless constituted an expression of opinion within the meaning of Art 10 (see Steel and Others v United Kingdom [1998] Crim LR 893). The measures taken against the applicants were therefore an interference with their right to freedom of expression. To be justified, an interference with that right must firstly be prescribed by law under Art 10(2). One of the requirements connoted by the expression ‘prescribed by law’ was foreseeability. Conduct contra bonos mores was defined in English law as behaviour which was ‘wrong rather than right in the judgment of the majority of contemporary fellow citizens’. The definition of conduct contra bonos mores failed to give the applicants sufficiently clear guidance as to how they should have behaved in future. The interference with the applicants’ freedom of expression was not therefore ‘prescribed by law’ and there had, therefore, been a violation of Art 10 of the Convention. The Court found that it was not necessary to consider the remainder of the complaints. Under Art 41, the applicants were awarded £6,000 for legal costs and expenses.
Comment The criticism that powers to prevent a breach of the peace are unacceptably broad and imprecise may be levelled with greater force at the contra bonos mores power (arising under the Justices of the Peace Act 1361) which allows the binding over of persons whose behaviour is deemed by a bench of magistrates to be anti-social although not necessarily unlawful. This power, which hands an extremely wide discretion to magistrates to determine the standards of good behaviour, has been severely criticised as a grave breach of rule of law standards (see Glanville Williams (1953) 16 MLR 417; Hewitt, P, The Abuse of Power, p 125). This decision is therefore to be welcomed in the hope that it will, not before time, lead to the abolition of the power. In any event, in the light of this decision, the power is unlikely to be used when the Human Rights Act comes fully into force.
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Articles Striking out for delay under the new CPR 1998 ........................................................24 Part 36 offers to settle and payments into court ........................................................26 New developments in conditional fee agreements ....................................................28
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Striking out for delay under the new CPR 1998 by Paula Loughlin, LLB, LLM, Solicitor A recent Court of Appeal decision, UCB Corporate Services Ltd v Halifax Ltd (unreported), has made it clear that the decision to strike out a statement of case for non-compliance with time limits laid down by rules and orders is a matter for the judge’s discretion in all the circumstances of the case. In particular, the court rejected the contention that Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 laid down a principle that a judge must consider whether lesser sanctions available to him under the new rules would be enough to deal with the case justly without taking the drastic step of striking out the statement of case. With this decision, the Court of Appeal are again underlining the message that they will be slow to interfere with the exercise of a judge’s discretion in applying the new Civil Procedure Rules.
Power to strike out a statement of case Rule 3.4 of the CPR sets out the circumstances where the court has the power to strike out a statement of case. These are: • where the statement of case discloses no reasonable grounds for bringing or defending the claim (r 3.4(2)(a)); • where the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings (r 3.4(2)(b)); • where there has been a failure to comply with a rule, practice direction or court order (r 3.4(2)(c)). Statement of case is defined in the rules to include ‘a claim form, particulars of claim, defence, Pt 20 claim, or a reply to a defence’ (CPR r 2.3(1)). The glossary at the end of the CPR defines striking out to mean the court ordering written material to be deleted so that it may no longer be relied upon. The court may strike out part or all of a statement of case (r 3.4(1)). The court’s power to strike out a statement of case under the new rules can be broadly divided into two grounds. The first relates to the content of the statement of case itself and is covered by r 3.4(2)(a) and (b) above. The Practice Direction to r 3.4 gives examples where ground (a) may be made out including where the facts set out in statement of case do not indicate what the claim or defence is about such as ‘money owed £5,000’ or a bare denial, or where the pleaded facts do not disclose a legally recognisable claim or defence (PD 3.4, paras 1.4, 1.6). As for (b), this will be made out if a claim is vexatious, scurrilous or obviously ill founded (PD 3.4, para 1.5). The power to strike out under these provisions can be exercised by the court following an application from a party or of its own initiative at any time including when a claim form is issued or defence filed which appears to the court to fall within ground (a) or (b) (PD 3.4, paras 2–4). The second ground, covered by r 3.4(2)(c), relates to the conduct of the case by the parties where there is a failure to diligently bring or defend a case. It was this ground, which can generally be summarised as delay, that the courts were considering in the above
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cases. Although the above circumstances are specified, r 3.4(5) provides that this does not limit any other power the court may have to strike out a statement of case.
Striking out for delay under the old rules Under the old regime, for the most part, the parties were free to agree to extend time limits and conduct their cases at a pace controlled by them, whether through the use of court orders against each other or by agreement. It was not uncommon for there to be months of inactivity on both sides. If a party made an application to strike out a claim or defence on the grounds of delay, they either had to show inordinate and inexcusable delay that caused prejudice to the party or that the delay was such as to constitute an abuse of process. Moreover, although in theory the court had the power to strike out a case or defence for failure to comply with court directions, the practice was not to do this on the first application but to impose an ‘unless order’ instead, warning the defaulting party that unless they complied with the order by a certain date their action would be struck out. The guiding principle under the old rules when the court was considering whether to strike out a claim or defence was the relative prejudice between the parties.
Striking out under r 3.4(2)(c) of the CPR Under r 3.4(2)(c) of the CPR, the court has an unqualified power to strike out a statement of case where there has been a breach of a rule, practice direction or court order. There is no requirement that the rule, practice direction or court order in question should contain a warning that non-compliance with it may result in the striking out of a party’s case. (This power should be distinguished from ‘conditional’ or ‘unless’ orders where the court has the power to make an order, for instance that a direction be complied with by a certain date, and the order specifies the consequences of failure to comply (r 3.1(3)). The consequences of default typically being striking out of the party’s statement of case.)
Biguzzi v Rank Leisure plc In Biguzzi, Lord Woolf gave some general guidance on the likely operation of the court’s powers under r 3.4(2)(c) to strike out a statement of case for delay. Lord Woolf emphasised that, while on the one hand compliance with rules and directions is more important under the new rules, the courts have more scope to impose appropriate
C I V I L punishment for default and would not therefore be driven to resort to striking out when another sanction could be imposed. The new rules give the court broad powers to impose other sanctions, short of striking out, such as indemnity costs orders or ordering money to be paid into court, which allow the court to consider the circumstances of each case and impose an appropriate punishment to fit the crime. Lord Woolf indicated that striking out would be reserved for the most serious cases of breach of the rules. He suggested that failure to comply with a rule would not be enough to justify striking out without consideration of the justice of the particular case. Biguzzi was a case in point. Although the claimant was guilty of serious delay, so too was the defendant and there was no fear that the delay would mean that the case could no longer be tried fairly. To strike out in those circumstances would have allowed the defendant to obtain a procedural advantage over the claimant when in reality justice required that the case should be heard despite the delay. Lord Woolf observed that it was the lack of court control over litigation and the culture of delay and disregard of time limits under the old rules which led to the introduction of drastic sanctions such as automatic striking out for failure to set down for trial as embodied in the former CCR Ord 17 r 11(9). This rule was universally criticised not only because it applied automatically without any judicial consideration of its appropriateness but also because the sanction was so drastic it led to large quantities of ‘satellite’ litigation as parties tried to appeal against it thus defeating the purpose of the rule. Lord Woolf believes that one of the advantages of a more flexible system is that a lesser order is much less likely to result in an appeal than the ultimate order of striking out. Lord Woolf also appealed to the judges to properly exercise their case management powers and not let breaches of the rules go unmarked for fear of a return to the old culture of disregarding time limits. There is therefore a feeling that considerations of deterrence will feature in the court’s decision whether to strike out or impose another sanction for breach of the rules. Lord Woolf stressed that, although the obligation is on the claimant to prosecute his action, it is just to look at the conduct of both sides in the case. Moreover, as the court must apply the overriding objective, the contest is no longer only one of the relative prejudice between the parties to the action when deciding whether to strike out but also includes the interests of the administration of justice and whether the court’s ability to hear other cases has been affected by the defaulting party’s conduct (See CPR Pt 1) Biguzzi also made it clear that the courts should not have regard to any pre-CPR cases when deciding what course to take under the new rules.
UCB Corporate Services v Halifax It was in the light of this dicta of Lord Woolf that counsel for the claimant in UBC v Halifax argued that Biguzzi laid down a principle that a judge must consider the lesser alternatives to striking out before deciding to make that order. In this case, as in Biguzzi, there had been a ‘wholesale disregard of the rules’ (a phrase adopted from an earlier case). The judge decided in the circumstances that the conduct constituted an abuse of process and therefore justified striking out. The Court of Appeal held that there was no evidence to suggest that the judge was unaware of the other sanctions available to him and they would not disturb his exercise of discretion in finding that the conduct justified striking out. The Court of Appeal refrained from laying down guidelines for the lower courts in exercising the power in r 3.4(c) or from qualifying that power in any way and gave the clear message that the exercise of the power is a matter for the judge in the exercise of his discretion in all the circumstances of the case. Such an approach is in
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accordance with the general intention of the court of appeal, previously expressed, to limit the scope for appeal based on the application of the new rules. It is also in accordance with the principle that the rules are a self-contained code which can be applied by the court in accordance with the overriding objective without the necessity to look to previously decided cases. The point was also made that it was ironic to suggest that the new rules would operate a more lenient regime than the old given the reasons why the new rules were introduced, namely to stamp out delay and disregard of time limits and wrest control of cases from the parties and give it to the courts. The decision in UCB is not inconsistent with Lord Woolf’s decision in Biguzzi. Although Lord Woolf went some way in making general comments on the operation of the new rules, one clear message was that in the light of a party’s default the appropriate sanction to impose was a decision for the judge after considering all the circumstances of the case. Although Lord Woolf stated that striking out should be reserved for the most serious cases of breach, he did not lay down a principle that this ultimate sanction could not be used just because the court also had available other less drastic ones. Taking the two decisions together, one overall message seems to be that the sanctity of a judge’s exercise of discretion is paramount. The appeal court is very reluctant to interfere with that. The Court of Appeal does not rehear the application and, unless there is an error of law or inappropriate exercise of discretion, the decision will stand.
Conclusion It must be said that, for cases started after 26 April 1999, the decisions in both Biguzzi and UCB are not really a guide to the operation of the court’s striking out powers under the CPR. This is because they are both transitional cases where the conduct described as ‘wholesale disregard of the rules’ occurred under the old rules but the appeal against the striking out was heard under the new rules. With the introduction of case management and direct control of proceedings by the court, it is likely to be very rare for a case started under the new rules to get to the stage where the parties have had the opportunity to indulge in wholesale disregard of the rules. Throughout the history of a case, the court will set timetables with key dates which require an application to the court to change. Apart from such specific powers, the court must have regard to the general application of the overriding objective to deal with cases expeditiously and with regard to the needs of other court users and the administration of justice. In these respects, it is very likely that the court will impose lesser sanctions if a party breaches rules or orders along the way because the conduct punished on any occasion is unlikely to have built up to a level that would justify striking out. On the other hand, with the ethos behind the new rules, it is likely that the court will be more ready to impose unless orders on parties who breach the rules. Moreover, this will probably be in addition to the sanction imposed as punishment for the breach. Therefore, although striking out following a long period of inactivity on a case is likely to be rare for cases started under the new rules, this is not because the court is more lenient, but because case management takes away the opportunity for that level of default. Striking out a statement of case will still be as much of a hazard for a defaulting litigant under the new rules as it was under the old but is likely to be confined to those circumstances where an unless order has been imposed specifying it as a consequence unless a party take the next step in a case.
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Part 36 offers to settle and payments into court by Paula Loughlin, LLB, LLM, Solicitor The system of Pt 36 offers to settle and payments into court is designed to put pressure on parties to settle disputes rather than to litigate them. However, in keeping with the ethos of the new CPR, a recent case
backdrop of the litigation as a whole and the conduct of the parties,
indicates that the test as to whether a party should be subject or entitled
particularly, in this context, in their behaviour in disclosing material
to the costs and other penalties provided by Pt 36, is not simply a narrow
matters. Such a decision is consistent with the ethos of the new rules
one of whether the offer or payment is better or worse than that ordered
with its emphasis on co-operation and openness between the parties
at trial. Instead, the test is a holistic one where all relevant aspects of the
and discouragement of tactical manoeuvring.
litigation and behaviour of the parties are considered by the court. In particular, the court will be concerned to see that full and early disclosure was given of all relevant information so that a party was in a
The incentives to settle
position to assess whether to make or accept an offer to settle or payment
The way Pt 36 encourages settlement is by putting a party at risk as to
into court.
costs or interest penalties if they reject an offer or payment but at trial the court awards the same or less than the offer or payment. Part 36
Resolving disputes without litigation
allows both the claimant and the defendant to make Pt 36 offers. There is also provision for pre-trial offers to settle. In all cases, in order to
Lord Woolf said in his Final Report: ‘My approach to civil justice is that
have the potential costs and other consequences provided by Pt 36,
disputes should, wherever possible, be resolved without litigation. Where
the offer or payment has to comply with the procedural requirements
litigation is unavoidable, it should be conducted with a view to
of that part. In most cases, offers or payments should be made at least
encouraging settlement at the earliest appropriate stage’ (Final Report,
21 days before the date fixed for trial and give the offeree 21 days in
Chapter 10, p 107, para 2). Part 36 offers and payments are an important
which to consider whether to accept or reject the offer. In the case of a
part of the new ethos introduced as a result of Lord Woolf’s report.
claimant, acceptance of the offer or payment will also have the result
Avoiding litigation and early settlements fall within the ‘saving expense’ part of the overriding objective (CPR r 1.1(2)(b)) and Pt 36 offers
that the defendant must also pay the claimant’s reasonable costs of the proceedings to date.
and payments can be seen as one of the main tools in bringing these results about. If an offer or payment is made by a party to a dispute in accordance with Pt 36 but rejected by the other and the case proceeds to
Claimant’s Pt 36 offers
trial, the Pt 36 offer or payment can be used as an indicator as to whether
Once a claimant starts proceedings, she can make a Pt 36 offer to
those proceedings were a waste of time and money. If at trial judgment is
settle the case for less than she is claiming or on less advantageous
given which is the same as or less than the terms or amount of the Pt 36
terms (if it is not simply a money claim). The defendant then has to
offer or payment, then, on the face of it, the offeree will have wasted
decide whether to accept that offer or reject it but if she does the latter,
expense for both parties in litigating the matter rather than accepting the
risks the consequences if at trial the claimant betters her own Pt 36
Pt 36 offer or payment. Therefore, Pt 36 provides that such a party will be
offer. If the claimant has conducted the litigation reasonably, co-
penalised for the wasted expense in taking the case to trial through costs
operated fully and made early and full disclosure, then the likely
or interest penalties unless it would be ‘unjust to do so’. The nature of the
consequences are that she will be awarded penal rates of interest on
penalties imposed depends on whether the party is claimant or defendant
damages and costs (up to a maximum of 10% above bank base rate)
(rr 36.20–21).
and/or costs on the indemnity basis, running from the latest time the
However, although Pt 36 is drafted in terms that the costs and
defendant could have accepted the claimant’s Pt 36 offer.
other penalties will apply unless the court considers it unjust to do so, a
Such penalties are heavy and defendants should be wary of
recent interpretation of Pt 36 by the Court of Appeal seems to put the
invoking them. The concept of a claimant’s offer to compromise an
emphasis on the exception rather than the rule. In Cheryl Lynne Ford v
action having such ‘teeth’ was a new concept introduced with the
GKR Construction Ltd and Others (1999) The Times, 5 November, Lord
CPR. However, there are already examples of the courts applying the
Woolf MR made it clear that, if a party is to receive the costs and other
penalties. In Richard and Others v George Little Sebire and Co (1999)
benefits promised by the system of Pt 36 offers and payments into court,
The Times, 17 November, the claimant achieved more at trial than
it will not be enough to show that the other side has clearly failed to
their proposals contained in their Pt 36 offer. In accordance with Pt
better your offer or payment. The party will also have to show that the
36.21, the claimants were awarded indemnity costs and interest at
party who rejected the offer was in a position to make a fully informed
10% above base rate on the award of damages for the period between
decision as to whether to accept or reject the offer at the time it was
the latest time the defendant could have accepted the claimant’s Pt 36
made. Therefore, a Pt 36 offer or payment will be viewed against the
offer and the date judgment was handed down. When exercising his
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discretion to award such penalties, the judge emphasised that the
this being that it may be unjust to allow a claimant to recover all the
purpose of them was to encourage settlement and save expense in
costs incurred so far on acceptance of a payment in if the claimant is
accordance with the overriding objective. The judge was also
only accepting the same amount as was offered pre-trial. Therefore,
conscious that his decision to impose the sanctions would be a clear
unless there is some good reason why the claimant changed her mind
warning to litigants that the court is prepared to use its powers in this
and accepted the offer after proceedings were started, for example,
way and so act a as a deterrent to other litigants. He warned that unless
because it was only then that the defendant disclosed relevant
these powers were exercised in a way that made a material, albeit
information to her, the likely order that the court will make is for the
proportionate difference to the outcome of the case, the rule would
claimant to be paid her costs up to the time of rejection of the
become otiose.
defendant’s pre-trial offer but to pay the defendant’s costs incurred
However, it is acknowledged that these penalties are harsh and
thereafter.
Lord Woolf commented in the Ford v GKR Construction case that the obligation to ensure that the offeree was in a position to assess whether to accept an offer, through disclosure of material matters, was of particular significance where defendants were concerned because of the court’s powers to award additional interest if the defendant rejected the offer but was ordered to pay more at trial.
Offers and counter offers It is common for there to be a counter offer to the other party’s Pt 36 offer or payment. Where both a claimant and a defendant have made a Pt 36 offer, if both are rejected, various consequences may follow. So far as Pt 36 is concerned, so long as the claimant beats the defendant’s offer or payment into court, there will be no adverse costs
Defendant’s Pt 36 offers and payments into court
consequences for the claimant, even if she is awarded less at trial than her own Pt 36 offer. However, if a defendant is ordered to pay more or on better terms than her Pt 36 offer or payment and more than the
Once proceedings start, if a defendant to a money claim wants to make
claimant offered to settle by, the costs and other penalties provided by
an offer to compromise the claim in accordance with Pt 36, that offer
Pt 36 potentially come into play. It would always seem therefore to be
must be made by way of a Pt 36 payment into court. Although the court
in the claimant’s interests to make a Pt 36 offer, so long as it can be
must have regard to all offers in compromise when exercising its
pitched at a level which if accepted will adequately compensate the
discretion as to costs, in a money claim, it cannot order the costs
claimant for her loss.
consequences in the defendant’s favour provided by Pt 36 unless the offer was made by way of a payment into court.
However, it should be said that, if a claimant fails to recover at trial the full amount of damages claimed, this will be taken into account
A defendant who is in the position where a claimant has failed
when the court is exercising it discretion as to costs under Pt 44. By the
to recover more in damages or more favourable terms than the
same token, the court may also take into account the fact that the
defendant’s Pt 36 offer or payment will usually secure the costs benefits
amount recovered or terms of the judgment are less than the claimant’s
provided by Pt 36. Again, this is on the assumption that the defendant
own Pt 36 offer.
has behaved reasonably in the litigation, co-operated and provided full and early disclosure to the claimant. That is, that it is not unjust to make the order. The order the defendant will secure is often termed ‘a split order’ as to costs. This means that the defendant will be liable for the claimant’s costs until the time when the claimant could have accepted the Pt 36 offer or payment but the claimant will be ordered to pay the defendant’s costs incurred from the time when the claimant could have accepted the offer until judgment is given. Such an order modifies our system’s ‘indemnity costs rule’, in that the unsuccessful litigant pays the successful litigant’s costs of the proceedings. However, it reflects the reality of the situation in that, as regards a Pt 36 offer or payment, the issue between the parties is not simply whether the claimant has been successful at trial but how much the claimant has recovered.
Pre-trial offers to settle There is also provision for the parties to make offers to settle before
Conclusion It is dangerous for a party to assume that all that is necessary to achieve the costs and other benefits promised by Pt 36 of the CPR is to make a well judged offer or payment which exceeds the amount ordered by the court. A party must also be confident that the offer or payment was made at a time when the other side was in a position to make an informed decision as to whether to accept or reject the offer or payment. In particular, if the party was unable to make an informed decision because the other side failed to make full or early disclosure, then the costs and other penalties are unlikely to apply. Apart from the example provided by the Ford case, where evidence was obtained and disclosed at a late stage, it may also be considered difficult for a party to make an informed decision about whether to make or accept a Pt 36 offer or payment before an expert report is obtained in a case where it would be reasonable to rely on one.
litigation has even begun. So long as the offer is made in accordance
The Court of Appeal has stressed in the Ford case the
with r 36.10, the court must take it into account when making any
importance our system of civil procedure places on each side being
order as to costs. Such offers should basically be expressed to be open
fully informed by the other of the strength and value of the case against
for acceptance for 21 days and if made by a person who would be a
them so that each side can make an informed decision about their
defendant if proceedings were started, include an offer to pay the
prospects of success and how to conduct their case. Therefore,
claimant’s reasonable costs incurred so far. If proceedings are started
although the ethos of the new system is to resolve disputes without
the defendant to a money claim must turn any such pre-trial offer to
litigation, a party will not be penalised for failing to do so if they were
settle into a payment into court of at least the same amount as the offer
unable to make informed decisions about settlement due to the failure
in order to obtain the costs benefits provided by Pt 36. However, the
of the other side to properly disclose their case.
claimant would then be unable to accept a payment in made in those circumstances without the permission of the court. The reasoning for
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New developments in conditional fee agreements by Paula Loughlin, LLB, LLM, Solicitor On 1 April 2000, new provisions to the Courts and Legal Services Act 1990 were introduced, designed to make the use of a conditional fee agreement (CFA) a more attractive method of funding litigation (see ss 58, 58A, 58B of the Courts and Legal Services Act 1990 and ss 27–31 of the Access to Justice Act 1999). Although it has been possible to enter into an enforceable CFA in all types of civil cases (except family law cases) since 1998 (SI 1998/1860) for those
The success fee
entering into a CFA after 1 April, the success fee and any legal expenses
Most CFAs provide for a ‘success fee’. The purpose of the success fee is
insurance premium are now recoverable from the unsuccessful opponent,
to reward the lawyer for taking the risk of losing the case and so being
along with the usual costs of the action.
paid nothing for the work undertaken. This is usually expressed as a
Rationale for the changes
percentage increase of the lawyer’s usual or ‘base’ fees in the event of success. The weaker the case and less likely to succeed, the higher the
The new legislation coincided with fundamental reform to the civil legal
percentage increase and vice versa. However, the maximum
aid system. On 1 April 2000, the Civil Legal Aid system, administered by
percentage increase permissible has been fixed at 100% (reg 4,
the Legal Aid Board, was replaced by the Community Legal Service (CLS),
Conditional Fee Agreements Order 2000 (SI 2000/823)).
to be administered by the Legal Services Commission. It was no coincidence that these major reforms were introduced at
Legal expenses insurance
the same time because the government’s intention was to promote the use
Although a client entering into a CFA will not have to pay any fees to
of CFAs as a replacement for public funding in most civil, non-family
their lawyer if their case is unsuccessful, due to our indemnity costs
cases. For most cases which can be funded by a CFA, public funding
system, the unsuccessful party will in most cases be ordered to pay the
under the CLS will not be available (see the Access to Justice Act 1999,
successful party’s costs. In order to protect the client against the
the Civil Merits Test and the Funding Code). The reforms making the
consequences of this if the case is lost, lawyers will advise clients
success fee and any legal expenses insurance premium recoverable from
entering into a CFA to take out legal expenses insurance to cover their
the unsuccessful opponent were designed to make CFAs a feasible option
potential liability for the other side’s costs. This type of legal expenses
for all litigants. For claimants, recovering the success fee and insurance
insurance is known as ‘after the event insurance’ as compared to those
premium from the unsuccessful opponent means that they will no longer
policies, frequently attached to car and home insurance, providing legal
have to pay these additional sums to their lawyer and the insurance
expenses insurance cover before any claim has arisen.
company out of their damages. For defendants, and those bringing nonmoney claims, where there are no damages out of which to pay any success fee or insurance premium at the end of the case, a CFA will now
Funding arrangement
in theory be a viable option because these additional sums can now be
If a CFA entered into after 1 April 2000 includes a success fee or is
recovered from the unsuccessful opponent.
backed by after the event legal expenses insurance, it will fall within the definition of a funding arrangement as defined in CPR r 43.2(1)k. A party who enters into a so called funding arrangement is obliged to
Conditional fee agreements and funding arrangements
comply with disclosure requirements and other procedural formalities if they are to be able to recover the success fee and cost of the insurance premium from their opponent in the event of success.
A CFA (commonly known as a ‘no win, no fee’ agreement) is defined by s 58(2)(a) of the Courts and Legal Services Act 1990 (as substituted by s 27
Entering into a CFA
of the Access to Justice Act 1999) as: … an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances.
The ‘specified circumstances’ will be defined in the document constituting the CFA. They are usually if the client is ‘successful’ or ‘wins’ his/her claim. These terms are usually further defined within the agreement to cover an out of court settlement as well as a court judgment in a client’s favour.
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Formalities In order to be enforceable, a CFA must comply with stringent formalities prescribed in the Conditional Fee Agreement Regulations 2000 made under ss 58 and 119 of the Courts and Legal Services Act 1990 (SI 2000/692). These regulations oblige the legal representative to provide certain information and explanations to the client before the CFA is entered into. Some information must be provided orally, such as the
C I V I L requirement to inform the client about the circumstances when he/she will be liable to pay the costs of the legal representative under the agreement (reg 4(2)(a)). Other information must be provided both orally and in writing, such as the requirement to explain to the client the effect of the CFA. The regulations also specify what the contract containing the CFA must contain in order for it to be enforceable, such as details of the proceedings to which it relates and whether it covers any appeal, counterclaim or enforcement proceedings (reg 2(1)(a)). For those CFAs which provide for a success fee, additional requirements are specified such as the necessity for a statement explaining the reasons for setting the percentage increase of the success fee at the level stated in the CFA (reg 3(1)(a)).
Assessing the risk As noted above, a lawyer entering into a CFA which provides for a success fee, is required to assess and record the reasons for deciding upon the level of the percentage increase of the success fee (reg 3(1)(a)). This will obviously be directly related to the lawyer’s assessment of the strength of the case. Lawyers facing the task of deciding upon a percentage increase for CFAs often turn to mathematical tables to help them decide on that level once they have weighed up the legal merits of the case they are dealing with. So, for instance, a case with a 50% chance of success should have a 100% increase, while a case with an 80% chance of success should have a 25% increase. Although translating the chance of success into a percentage increase may not be a difficult equation to make, accurately assessing that chance will often be difficult even for experienced lawyers. It is not the case that all of the percentage increase has to be
L I T I G AT I O N
principle that a party should be informed at the earliest possible stage of the extent of any potential liability he/she may have to meet if he/she is unsuccessful in bringing or defending a claim.
Challenging the level of the success fee and insurance premium The new legislation provides for the success fee and insurance premium to be recoverable from the unsuccessful opponent and the general principle is now that if an order for costs is made this will include payment of the success fee and insurance premium unless the court orders otherwise (Rule 43.3A). In the light of these new provisions, the opponent is also given the opportunity to challenge the level of the success fee and insurance premium. Although in most cases the parties will agree these additional liabilities, in the same way that they now agree the amount of costs, if no agreement can be reached a party can ask for these additional liabilities to be assessed by the court at the end of the proceedings (CPR r 44.3A). If this stage is reached, the party entering into the CFA is obliged to disclose to the other party and the court the reasons, as stated in the CFA, for setting the percentage increase at the level chosen (reg 3(2)(a) of the Conditional Fee Agreements Order 2000). The requirement to give a justification for the percentage increase in the CFA is based on the lawyer’s assessment of the risk in the light of the circumstances known to the lawyer at the time the CFA was entered into (CPR PD 44, para 11.7). This provides some protection to a lawyer as the decision will be judged at the time of entering into the CFA and not at the end of the case where the ability to assess the prospects of success may be very different with the benefit of hindsight.
based on the prospects of success. A lawyer is also entitled to include an
Transitional provisions
element to compensate for the effect that the CFA will have on his/her
It is only for those CFAs which were entered into after 1 April 2000
cash flow due to the fact that payment of fees is only made at the
(when the new legislation was introduced) that the successful party is
conclusion of the case. If such an element is included in the percentage
able to recover the success fee and insurance premium from the
increase, this must be specified in the agreement (reg 3(1)(b)). However,
unsuccessful opponent. This restriction cannot be avoided simply by
this element of the percentage increase is not recoverable from the
ending the original agreement and entering into a new one after 1 April
unsuccessful opponent, it being payable by the client instead (CPR r
2000 (PD 44, para 57.8(2)).
44.3B(1)(a)).
Disclosure of the CFA A party who has entered into a so called funding arrangement (including a CFA which provides for a success fee and/or after the event legal expenses insurance) must disclose to all other parties the fact of having done if they are to be able to recover these additional sums from their opponent in the event of success. It should be noted that the requirement is to disclose the fact of having entered into the funding arrangement (along with other basic details such as the date and identity of the insurer) and not details about the level of the percentage increase of the success fee or amount of the insurance premium. If such other details were required, there would be a danger that the other party would be in a position to assess the other party’s view about the strength of their case. A party should inform every other party of the fact that he has entered into a funding arrangement even before proceedings have begun (para 4A.1 of the Protocols Practice Direction). Once proceedings have begun, a party must file at court and serve on the other parties a notice in the prescribed form (Form N251) containing details of the funding arrangement, such as the date of the CFA and insurance policy and
Conclusion The Lord Chancellor’s Department proposed the changes to the legislation to make CFAs more attractive to litigants because it was believed that the wider availability of CFAs would make ‘access to the courts a reality for the majority of the population of England and Wales’ (see Access to Justice with Conditional Fees, Lord Chancellor’s Department Consultation Paper, March 1998). However, it remains to be seen whether more or less people will be able to fund cases with a CFA compared to those funded with the benefit of public funding under the old Legal Aid system. In order to make a CFA a viable option, a client will not only have to satisfy a lawyer that their case is worth taking on but they will also have to satisfy an insurance company that it is worth insuring, so that the litigation can be taken forward with the security of an after the event legal expenses insurance policy. All the evidence suggests that insurance companies will naturally err on the side of caution when deciding upon which cases to insure. This may leave many people unable to bring a case even in those circumstances where a lawyer is prepared to fund it through a CFA, thus effectively denying this category of potential litigants access to justice.
identity of the insurer (r 44.15 and PD 44, s 19). These disclosure requirements are in accordance with the general
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Case notes Lloyds Bank plc v Independent Insurance Co Ltd. ....................................................31 Nurdin v Peacock ......................................................................................................31 Director General of Fair Trading v First National Bank plc ........................................32 Dimond v Lovell ........................................................................................................33 Truk (UK) Ltd v Tokmakidis GmbH ............................................................................35
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Case notes by Paul Dobson, Visiting Professor of Law at Anglia Polytechnic University and Greenwich University Restitution Lloyds Bank plc v Independent Insurance Co Ltd [199] 2 WLR 986, CA Where payment is made under a mistake of fact and discharges a debt of the payer’s or of a third party who authorised the payer to make the payment, restitution of the payment will not be ordered.
Facts The defendant insurance company was owed £162,387.90 by W Ltd. W Ltd sent a fax to its own bank (a) saying that it was expecting incoming credits to its account totalling over £167,000 and (b) requesting onward payment (by CHAPS) of £162,387.90 to the defendant. The expected credits did not arrive and W Ltd then paid into its account a cheque from K for £168,000 and orally requested the bank to pay the defendant ‘as soon as possible’. The bank responded that it could make the payment to the defendant only after the cheque from K had been cleared. Three days later, the bank, acting in the mistaken belief that the cheque from K had been cleared, made the payment to the defendant. This left W Ltd’s account substantially overdrawn. In fact, K’s cheque had not been cleared, though subsequently a credit of £55,000 from K was paid into W Ltd’s account. The bank brought these proceedings seeking restitution from the defendant of £107,387.90, being the full amount of the transfer made to the defendant by the bank, less the amount of the credit from K (£55,000) subsequently paid into W Ltd’s account. The judge at first instance allowed the claim, holding that W Ltd had imposed a condition precedent to the payment by the bank, namely that the bank was not to make the payment until the incoming cheque from K had been cleared. He thus held that W Ltd had not authorised the payment by the bank to the defendant. The defendant appealed.
Held
Comment Clearly, in the absence of any agreement between them to the contrary, a bank is not obliged to its client to make any payments out of the client’s account which are not covered by cleared effects in that account. Thus, the bank in the present case was not obliged to make the payment which it did to the defendant. The issue in the case was, however, one not of whether the bank was obliged to make the payment but whether W Ltd had authorised it to do so. In the absence of any express imposition of a condition precedent, a request by a client to the client’s bank to make a payment does amount to an authorisation to make the payment - even if that request is to make a payment from an account with insufficient funds to cover the payment. Thus, for example, when a client does not have the bank’s authority to overdraw, and a cheque written by that client is presented to the client’s bank for a payment in excess of the current balance in the client’s account, the bank is not obliged to pay the cheque but, if it does so, it is clearly doing so with the authority of the client. The client by issuing the cheque and thus causing it to be presented is thereby making an offer to the bank to take an overdraft from the bank on the bank’s current standard terms as to overdrafts. By honouring the cheque, the bank is accepting that offer. The client most certainly cannot subsequently sue the bank on the basis that the payment was unauthorised by the client! A request to make a payment by electronic transfer is no different in this respect from one made by the issuing of a cheque. Unless there is some restriction placed on such an instruction or it is countermanded before being carried out, the bank in acting on the instruction will be doing so with the client’s authority. The outcome of the present case turned upon whether the payment made by the bank to the defendant was authorised by W Ltd. This was because of a restriction on the right to recover money paid under a mistake. That restriction is that restitution will not be ordered where the payment was made for good consideration in that it discharged a debt owed to the payee by the payer or by a third party by whom the payer was authorised to discharge the debt. Clearly, having been authorised by W Ltd, the payment did indeed discharge W Ltd’s debt to the defendant. The basis of a claim for the restitution of money paid under a mistake is that otherwise the payee would be unjustly enriched. Where the payment is made with the authority of a third party whose debt to the payee is discharged by the payment, the payee cannot be said to be unjustly enriched.
Where restitution is sought of a payment made under a mistake of law, the mistake does not have to be a mistaken belief that the payer is liable to make the payment. It is enough that the payment would not have been made but for the mistake.
The judge had been wrong to conclude that W Ltd had in its instructions to the bank to pay the defendant, imposed a condition precedent to the payment to the defendant:
Facts
(a)
the original fax from W Ltd to the bank, properly construed, did not impose a condition precedent to payment. Rather, it merely recognised that the bank would
The claimant was lessee and the defendant was lessor under a 25 year
not make the payment except against cleared effects; even if that fax had imposed such a condition, the condition had been superseded by the later oral instructions. The payment was therefore made with W Ltd’s express or apparent
rent review in November 1995, that is, at the end of year five. No rent
authority, or was ratified by W Ltd or was accepted by the
having re-read the terms of the lease, informed the defendant that it
(b)
(3)
defendant in discharge of W Ltd’s indebtedness to the defendant.
Nurdin v Peacock [1999] 1 All ER 941, ChD
The appeal was allowed. (1) There is a distinction between on the one hand what the bank was authorised to do by its client, W Ltd, and on the other hand, what it was obliged to do. (2)
L AW
lease which provided for: an annual rental of £207,000 (payable in quarterly instalments); an extra rental of £59,000 for years four and five; a review took place with the result that the rental due reverted to the earlier £207,000. Nevertheless, the defendant continued to demand, and the claimant continued to pay, rental at the higher rates which had been payable in years four and five. However, in April 1997, the claimant,
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would pay only at the lower rate and that the claimant intended to set
as they fall due. If any repayment instalment is unpaid for more than
off the overpayments already made against future rent. Subsequently,
seven days ... FNB (the Bank) may serve a notice ... requiring payment
the claimant received legal advice to continue paying at the higher rate
before a specified date not less than seven days later ... Interest on the
and without set-off until the matter had been resolved through
amount payable shall be charged in accordance with Condition 3 at the
arbitration or through the courts. The legal advice was that, if successful
rate stated in para D... [variable] ... until payment after as well as before
in those proceedings, the claimant would be entitled to a full refund of
any judgment (such obligation to be independent of and not to merge
the excess. The claimant thus paid, in May 1997, the quarterly rental at
with the judgment).’
the higher rate. In the proceedings, the claimant sought to recover all the
The effect of these provisions was to make interest payable at the
overpayments, including that made in May 1997. When this latter
contractual rate on the amount of principal advanced together with
payment was made, the claimant was not, however, labouring under the
accrued unpaid interest existing at the time of judgment, during the
mistake that the higher sum was payable. Nevertheless, the claimant
period after judgment and until the judgment was discharged by
sought to recover the overpayment made in May 1997 on the basis that
payment. The Director General of Fair Trading brought these proceedings
the claimant had paid it when labouring under a mistake of law, namely
seeking an injunction to stop the Bank using cl 8 in its contracts, claiming
that it would be entitled to recover that overpayment. The defendant
that the clause was an unfair contract term within the Unfair Terms in
resisted that claim on the basis that money paid under a mistake of law
Consumer Contracts Regulations 1994. (The 1994 Regulations have since
could be reclaimed only if the mistake was that the claimant was liable
been replaced by the Unfair Terms in Consumer Contracts Regulations
to make the payment.
1999 which, however, give the Director General similar power to apply for an injunction.) The Director General was not able to attack the
Held Where money is claimed as having been made under a mistake of law, the claimant does not have to show that the claimant had mistakenly believed itself liable to make the payment. Rather it has to show that the claimant would not have made the payment but for the mistake of law – and possibly also that the mistake was directly related to the overpayment and/or connected to the relationship between payer and payee.
provisions (that is, as to the rate of interest) in para D or cl 3 because, being provisions which fixed the contractual rate of interest, they concerned ‘the adequacy of the ... remuneration as against the ... services ... supplied’ and thus were part of the core terms which are not subject to the test of unfairness in the regulations. The Director General argued, however, that cl 8 was an unfair term. At first instance, Evans-Lombe J rejected this argument and refused the injunction. The Director General appealed against this decision to the Court of Appeal. It was part of the Director General’s case that not infrequently a borrower, against whom
Comment
the bank had brought proceedings to recover the outstanding balance,
The case was, of course, an application of the ruling in Kleinwort
judgment being for the balance to be payable by instalments over an
Benson Ltd v Lincoln City Council [1998] 4 All ER 513, where the
extended period. In such a case, the effect of cl 8, coupled with the high
House of Lords reversed the earlier rule that money paid under a
contractual rate of interest, was often that there was a substantial amount
mistake of law, as opposed to a mistake of fact, could not be obtained.
of interest payable on the judgment debt. The effect of the clause was: to
The decision is interesting, among other reasons, for a curiosity of logic.
reverse the common law rule that the right to interest merged with the
The legal advice to the claimant was that the overpayment in May 1997
judgment debt and thus evaporated after judgment; to oust the
was recoverable. The advice was wrong. The claimant followed that
application of the County Court (Interest on Judgments) Order 1991.
advice. Therefore, the claimant paid under a mistake of law. Therefore,
Under the 1991 Order, interest on judgments is at a significantly lower
the money was recoverable as paid under a mistake of law. Therefore,
rate than it usually was under the Bank’s agreements. Also, under the
the advice was right. Therefore, no mistake was made. His Lordship
1991 Order, there are exemptions for (and no interest is payable on):
held that that unusual logical problem should not, and did not, stand in
•
judgments for £5,000 or less;
the way of the conclusion he had reached.
•
judgments for money due under an agreement regulated by the
would agree to a consent judgment being made by the judge, such
Consumer Credit Act 1974.
Director General of Fair Trading v First National Bank plc (2000) The Times, 14 March, CA
The clause effectively deprived the borrower of the benefit of these provisions. It also operated to deprive the borrower of the chance of getting the interest rate reduced under s 136 of the Consumer Credit Act
A clause in a standard form loan agreement which imposes post judgment interest at the contractual rate of interest is capable of being ‘unfair’ within the meaning of the Unfair Terms in Consumer Contracts Regulations.
Facts
1974.
Held The appeal was allowed. The fairness or unfairness of cl 8 within the terms of the regulations fell to be judged according to the following. Was there:
The First National Bank plc (‘the Bank’) is a grantor of consumer finance
•
an absence of good faith;
and home improvement finance. The agreements being scrutinised by
•
a significant imbalance in the parties’ rights and obligations under
agreements regulated by the Consumer Credit Act 1974. The contractual
•
detriment to the consumer?
rate of interest was stated at para D and was variable in accordance with
Clause 8 failed to satisfy this test and was unfair, because it enabled the
changes in the Bank’s Base Lending rate. Clause 3 provided that that rate
bank to obtain judgment against the debtor under a regulated agreement,
of interest was to be charged on a day to day basis on the outstanding
without the court considering whether to make a time order under s 129
balance and debited to the account in arrears.
of the Consumer Credit Act or, if it did, whether also to make an order
Clause 8 provided: ‘Time is of the essence of making all repayments ...
(under s 136 of the Act) amending the agreement and reducing the
the contract; and
the court were the standard form agreements of the Bank and were
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contractual interest rate.
The claimant commenced proceedings against the defendant claiming the full hire charges charged to her under the credit hire
Comment
agreement. She succeeded at first instance. That decision was reversed by the Court of Appeal who held that the credit-hire agreement was one under which ‘credit’ was provided, and thus was a regulated consumer credit agreement within the meaning of the Consumer Credit Act 1974.
At first instance, Evans-Lombe had been much persuaded by the fact that all that cl 8 did was to make interest payable at the contract rate on so much of the debt as was outstanding for as long as it was outstanding. His Lordship did not think that was unreasonable or unfair. The point is, however, that, even where the debtor initially resists court proceedings and comes to court, often, the debtor will capitulate before the hearing commences and will agree to the terms of an order being made. That order (a ‘consent order’) will then be made by the judge without the judge hearing the merits of the case. The effect of cl 8 was then to impose interest (at the contractual rate) on the judgment debt. The fact is that in a contested hearing the debtor is entitled to ask the court to make a time order (under s 129 of the Consumer Credit Act) giving the debtor time to pay and, usually, ordering him to pay in instalments. When granting a time order, the court has, under s 136, a supplementary power to amend the agreement (for example, to reduce the rate of interest payable) ‘in consequence of a term of the [time] order’. In a rather ambiguous decision in Southern and District Finance plc v Barnes [1995] CCLR 62, the Court of Appeal held that this latter power could be used to vary the rate of interest only where the variation was in consequence of a term of
That being so, ss 65(1) and 127(3) of the Consumer Credit Act applied and had the effect of rendering the agreement unenforceable by the credit-hire company against the hirer (the claimant) as it had been ‘improperly executed’ (that is, there had been a comprehensive failure to comply with the documentation provisions of the Consumer Credit Act). It followed that the claimant could not recover in damages from the defendant, those charges which she herself could not be required to pay. The claimant appealed to the House of Lords, arguing (i) that the agreement was not one under which credit was provided and therefore was not regulated by the Consumer Credit Act; (ii) that alternatively the agreement was a ‘multiple agreement’ within section 18 with the result that one part (its credit provisions) was a regulated agreement within the Act and the other part (its hire provisions) was an agreement outside the Act, with the result that the latter part was unaffected by the Act and was therefore enforceable; (iii) that, even if the hirer was under no liability to pay the hire charges, the hirer was nevertheless entitled to recover those charges from the defendant.
the time order, but then went on to approve its use in an apparently very wide set of circumstances. The effect of cl 8 in the Bank’s standard form agreement in the present case was that it imposed post-judgment interest
Held
would otherwise be payable, that normally denotes that ‘credit’ is
The appeal was dismissed. (a) The agreement provided ‘credit’ to the hirer, since it was one under which the hirer’s obligation to pay the hire charges was deferred. Thus, it was a regulated consumer credit agreement and, having been improperly executed, was unenforceable against the hirer. (b) The hirer, not being liable to pay the hire charges, was not entitled to recover them as damages from the defendant. The circumstances did not fall within any of the established exceptions to the rule against double recovery in Hunt v Severs [1994] 2 AC 350.
provided.
(c)
without the court, in many instances, ever getting the chance to consider whether it could or should exercise its powers under s 136. This decision reversed that at first instance which was discussed at [1999] SLRYB 25.
Consumer credit – credit-hire agreements Dimond v Lovell [2000] 2 WLR 1121; [2000] 2 All ER 897, HL Where an obligation to make a payment is deferred to a time later than it
Facts Following a crash caused by the defendant’s negligence, the claimant’s car was off the road for a time while it was being repaired. She hired a replacement car. Because it was not known how long the repairs would take, the agreement did not specify how long the period of hire was to last, other than to limit it to a maximum of 28 days. In fact, the agreement lasted eight days. The agreement, known in the trade as a ‘credit-hire agreement’, provided that ‘The Lessor will allow the Hirer credit on the hire charges until such time as a claim for damages has been concluded against the party ... that the Hirer alleges is liable for damages arising out of the said accident’. The hire agreement signed by the claimant, the hirer, did not specify the rate of hire charge or other charges payable by the hirer. These details were inserted only after the hirer returned the car at the end of the eight days hire. The daily rate of hire was over £43. The daily rate of hire under a conventional hire agreement (known as ‘spot
The agreement was not a multiple agreement. The provisions creating a debt (that is, for the hire) and the terms upon which the debt is payable (the credit) must form part of the same agreement.
Obiter dicta If the agreement had been enforceable against the hirer, the hirer would not have been able to recover in damages from the defendant the full amount of the hire charges payable under that agreement. Recoverable damages would be limited to the sum required to provide an alternative vehicle, that is, the amount of the credit hire charges minus the value of the additional benefits provided by a company providing a car under a credit-hire agreement – British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673. The corresponding ‘spot hire’ rate would normally be the correct measure of such recoverable damages.
hire’) for a similar car in that area at that time was about £24. This was a
Comment
profitable rate of hire for the credit-hire company and could be said to
This is the first ruling of the House of Lords on issues arising under the
reflect extra benefits which the hirer gains under a credit-hire agreement
Consumer Credit Act 1974. In recent years, credit-hire had become very
which the hirer does not get under a conventional hire agreement. These
profitable for the companies involved in it. The difference between the
benefits include: not having to fund the hire of the replacement car;
credit-hire daily rate in this case of £43 and the conventional (spot hire)
having her case against the other driver handled for her by the credit-hire
daily rate of £24, was substantial. Some other credit-hire companies were
company.
charging much higher rates still. It was hardly surprising that the
33 • STUDENT LAW REVIEW • 2000 YEARBOOK
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insurance companies of defendant motorists searched hard for a way to
‘credit’ if it includes a provision which defers the obligation to pay to a
deny liability to pay these charges. They failed to have credit-hire
time later than that obligation would otherwise have arisen. One can
agreements struck down as being champertous (Giles v Thompson
think of various types of agreement where charges (perhaps termed,
[1994] 1 AC 142, HL). In the present case, the challenge was based on
‘fees’, ‘subscriptions’, ‘premiums’, etc) are normally payable once a year
the fact that the agreement was a consumer credit agreement regulated
at the start of the relevant year. A car or house insurance premium is,
by the Consumer Credit Act – and the challenge was successful. If that
normally, payable at the start of the year for which insurance cover is
had been all there was to the decision, it would have had little lasting
provided. Student fees are, normally, payable at the start of the academic
effect on the credit-hire business as a whole. Credit-hire companies
year to which they relate. Let us suppose that a student’s annual course
would have responded in one of two ways: (i) ensuring that all future
fee is £1,000. Now let us suppose that the agreement includes a term
credit-hire agreements were exempt agreements by requiring the hire
entitling the student to pay this in a number of instalments during the
charges to be payable in a single payment within 364 days of the making
year. For example, suppose that the agreement provides that £400 is to
of the agreement (see Zoan v Rouamba discussed at the end of this note);
be paid right away and that the remaining £600 is to be paid in
or (ii) ensuring that, when future credit-hire agreements were made, they
instalments later in the year. That is a provision which defers the
complied fully with the documentation provisions of the Consumer
obligation to pay to a time later than that obligation would otherwise
Credit Act.
arise. The agreement is thus one which provides credit. The amount of
The real sting in the present decision, however, is in the obiter
credit in this example is £600. It is ‘fixed-sum’, ‘restricted-use’ credit
dicta. These were not impromptu but followed extensive argument
provided under a ‘debtor-creditor-supplier’ agreement – exactly the same
before their Lordships. The majority ruling was that even when the hire
analysis as applies to a credit-hire agreement. The agreement will be a
charges are recoverable from the defendant motorist (that is, when the
regulated consumer credit agreement and thus the documentation
hire agreement is enforceable against the hirer) the recoverable charges
requirements of the Consumer Credit Act will have to be complied with
will not be the whole amount of the credit-hire charges. The element of
– unless the agreement falls within one of the categories of ‘exempt
the credit-hire charges attributable to the extra benefits is not
agreement’. There is one such category which may be applicable. It is in
recoverable. This means that normally the hirer will be entitled to
Article 3(1)(a)(i) of the Consumer Credit (Exempt Agreements) Order
recover from the defendant motorist no more than what would have
1989. This exemption applies to a ‘debtor-creditor-supplier agreement’
been the charges under a conventional (spot) hire agreement. This
which provides ‘fixed-sum’ credit which is required to be repaid in no
decision has big commercial implications. Credit-hire had become big
more than four instalments within a period of 12 months ‘beginning with
business. In the days immediately following the decision, the shares in at
the date of the making of the agreement’. If the student’s outstanding fees
least one credit-hire company went into free-fall. The present decision
of £600 are to be paid in two instalments, payable at the start of the
does not in any way alter the law whereby the victim of a road accident
second and third terms of the year, then the agreement will be within the
can recover from the other (negligent) motorist the cost of a replacement
exemption. The credit will clearly be payable (in four or fewer
car (at spot hire rates). Thus, it is still the law that the amount
instalments) within the 12 months allowed by the exemption. If,
recoverable will be reduced by the amount of any contributory
however, the agreement allows the student the option of paying the £600
negligence of the claimant. Furthermore, it is still a requirement that,
in five or more instalments (even if within the twelve months), the
before being entitled to recover any hire charges at all, the claimant
agreement will not be exempt. In that case, if the documentation
must establish that he had a need for the replacement car. The present
requirements of the Consumer Credit Act are not complied with (or if the
decision effectively puts a cap (the relevant ‘spot hire’ rate) on the
university or college is not properly licensed under the Consumer Credit
amount recoverable.
Act), the university or college may find itself, like the credit-hire company
Motorists are now more alive than they used to be to the
in Dimond v Lovell, unable to enforce the agreement – unable to recover
possibility of being entitled to hire a replacement car and to claim the
the outstanding fees from the student. With insurance policies, however,
cost as part of the damages recoverable from the other motorist (that is,
the matter may not be so straightforward. On the one hand, an insurance
assuming the other motorist was to blame). Credit-hire, in its heyday,
policy requiring an annual premium but containing a provision allowing
was marketed to victims of motor accidents where it was pretty clear
the insured to pay all or some of the premium in monthly instalments
that the other motorist was entirely to blame. For the hirer, its attraction
over the year, provides ‘credit’ and will not be exempt – because the
was a combination of: (i) the fact that the hirer did not have to use his
credit is payable in more than four instalments. On the other hand, an
own resources to pay the hire charges; and (ii) those charges would in
insurance policy (for example, a private health insurance policy) which
due course be met in full by the other motorist (or the latter’s insurer).
does not impose an annual premium but simply requires payment of a
Now that the latter benefit has been removed, perhaps more insurers
monthly premium, arguably, does not provide credit and is not a
will offer the provision of a replacement hire car as a term of the policy.
consumer credit agreement at all.
This, if it becomes commonplace, will (depending on the precise terms
The exemption mentioned above was discussed in Zoan v
of the policy) have three very considerable benefits: (i) the motorist will
Rouamba [2000] CCLR 18. There, a credit-hire agreement required the
be able to claim the replacement hire car even when the accident was
hire charges to be paid (in one instalment) on or before a date ‘12
entirely or partly his own fault; (ii) the motorist will have that right
months after the date of this agreement’. The Court of Appeal held that
irrespective of whether the motorist can establish a need for the
the agreement was not within the exemption because it allowed one day
replacement car; and (iii) the rate of hire (and the cost thus falling on the
too long for the payment. The 12 months allowed by the agreement did
insurance company) will be kept to a minimum by virtue of the terms of
not begin until after the date of the agreement, whereas to secure the
the policy which are likely to restrict the motorist to hiring the car from
exemption the credit must be repayable within a 12 month period
those outlets approved (or even dictated) by the insurer – and approval
beginning with the date of the agreement.
will be withheld unless the rate of hire is low. There are some consumer credit implications of the present decision. One can now say that, normally, an agreement provides
34 • STUDENT LAW REVIEW • 2000 YEARBOOK
Sale of goods – loss of right of rejection
C O M M E R C I A L
Truk (UK) Ltd v Tokmakidis GmbH [2000] 1 Lloyd’s Rep 543 Where goods are bought for resale, the reasonable period of time before the right to reject the goods is lost, will normally last for the time it takes to re-sell the goods plus a further period of time for the ultimate purchaser to test the goods,
Facts
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the date for payment. (5) In the present case, the reasonable period of time had not expired by December 1996 when the buyer questioned compliance and refused to pay. (6) Furthermore, the buyer was entitled to a further reasonable period in which to investigate the question of compliance – a period which had not expired when, promptly upon receiving Iveco’s post inspection report, in March 1997, the buyer gave an unequivocal notice of rejection. (7) The buyer had thus validly rejected the goods and was under no obligation to pay the price and was entitled to damages.
Truk entered a contract to supply to Tokmakidis and fit an ‘underlift’ to an Iveco chassis. The chassis was to be bought and supplied by Tokmakidis. Tokmakidis was in the business of buying and selling
Comment
recovery vehicles. The underlift was equipment for lifting the vehicles to
This case considered the question of the length of reasonable time
be towed. The Iveco, when fitted with the underlift, would be a
which is allowed before the buyer is taken to accepted the goods and
complete recovery vehicle. It was a term of the contract that the
thus to have lost his right to reject them for breach of condition. It is the
installation of the underlift would accord with Iveco guidelines (thereby
first reported case to consider this issue, since the relevant section (35)
ensuring that Tokmakidis would have the benefit of the chassis being
of the Sale of Goods Act 1979 was amended by the Sale and Supply of
covered by Iveco’s warranty). It was also a term of the contract that the
Goods Act 1994. There was not in fact much reported case law on the
price would be payable either (i) six months after delivery or (ii) upon
matter even before that amendment – and that included the
resale of the vehicle, whichever was the earlier. When, in June 1996, the
controversial first instance decision in Bernstein v Pamson Motors
underlift was fitted and supplied by Truk, Truk informed Tokmakidis that
(Golders Green) Ltd [1987] 2 All ER 220, in which it was held that the
it had been installed in accordance with Iveco guidelines. This was
buyer of a new car had lost his right to reject after having had the car
wrong, as Tokmakidis subsequently learnt when, in December 1996, a
just a few days and driven it just a few hundred miles and whilst the
prospective purchaser of the vehicle drew it to Tokmakidis’s attention.
defect in the car was still latent. The judge in the present (first instance)
Tokmakidis immediately informed Truk and refused to make the
decision, recognised that the statutory provisions (ss 11(4) and 35) on
payment for the goods, which otherwise have fallen due at that time. A
acceptance and rejection involve a balancing exercise between on the
series of communications between Tokmakidis and Truk occurred from
one hand the buyer’s interest in being able to reject non-compliant
December 1996 round to July 1997. During this time, Tokmakidis got
goods whenever the defect appears and, on the other hand, the seller’s
Iveco to inspect the vehicle, upon which inspection (in Feb 1997) Iveco
interest that, if they are to be rejected, they be rejected as soon as
confirmed that the installation did not accord with their guidelines. In
possible. The learned judge identified the following propositions as
March 1997, Tokmakidis made alternative suggestions to Truk: (i) that
relevant to what is a reasonable time in which to reject the goods:
Truk should purchase the vehicle from Tokmakidis and thus constitute
(1)
conform to the contract.
remove the installation from the vehicle. Truk did neither of these things. Eventually, in June 1997, Tokmakidis wrote to Truk that, if the problem
(2)
The reasonable time may last longer than the time required to
(3)
The reasonable time may be extended by the dealings between
(4)
For each contract, there is only one reasonable time. Thus, there
examine the goods.
was not sorted out, Tokmakidis would himself have the installation removed from the vehicle – which in July 1997 he duly did. Truk was
the parties, for example, relating to the repair of the goods.
then informed that the underlift was ready for collection. Truk subsequently brought these proceedings claiming payment of the price for the supply and installation of the underlift. Tokmakidis counterclaimed on the basis that the goods supplied were defective. It
The reasonable time is not to be less than the time for the buyer to have an opportunity to examine the goods to see if they
itself seller of the vehicle to any new purchaser; (ii) that Truk should
are not different reasonable times for different defects in the same goods.
was accepted that Tokmakidis was entitled to reject the underlift at the
Clearly, in the present case, the judge’s decision to divide the post-
time it was first delivered.
delivery period into two (June to December 1996, and December 1996
Held
onwards) reflects the fact that dealings between the parties (here, after discovery of the defect) can extend the reasonable period. The case
(1) The essence of the contract was the delivery and sale of the underlift.
does not, however, establish that a buyer can always reject the goods
The contract was thus a contract of sale of goods, governed by the Sale
within a reasonable period of discovery of the defect. Clearly, it is
of Goods Act 1979. (2) There having been a breach of contract entitling
possible that a defect remains undiscovered (albeit through no fault of
the buyer to reject the goods, the main issue to be determined was
the buyer) until after lapse of a reasonable period (for example, in the
whether the buyer had lost the right to reject them by virtue of having
present case, until nine months or a year after delivery). In such a case,
accepted them within the meaning of ss 11(4) and 35 of the Sale of
the right to reject will have been lost. Nor is the present case much of a
Goods Act. (3) For this purpose, it was right to divide the period after
guide as to how long a reasonable period will be held to have lasted in
delivery into two: (i) from delivery (June 1996) to discovery by the buyer
a case of a sale, for example, of a new car, to a consumer. It seems to
of the fact of the seller’s breach (December 1996); (ii) from discovery of
boil down to ‘How long is a reasonable period for the consumer (the
the breach (December 1996) onwards. (4) Where goods are sold for
buyer) to have a reasonable opportunity to examine the goods to see if
resale, a reasonable time in which to give notice of rejection should
they conform to the contract?’. One week? Three weeks? Two months?
normally be the time actually taken to resell the goods, together with an
Who knows?! Perhaps, after all, the law is still not much different from
additional period in which they could be inspected and tried out (by the
that applied in Bernstein.
sub-purchaser). Where, as here, the price was payable at a date after delivery, that reasonable period of time should normally last at least until
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Articles Hint that Treaty of Union may contain ‘fundamental’ law ........................................37 The Wakeham proposals for the House of Lords: an overview and the government’s response ..........................................................................................40 Judicial review and the constitution after the Human Rights Act ..............................45
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Hint that Treaty of Union may contain ‘fundamental’ law by Gavin Phillipson, Lecturer in Law, University of Durham Readers will note that this issue of SLR contains a new section ‘Civil Liberties’. Cases and other developments in that area will therefore no longer be covered here, unless they raise wider constitutional issues. Lord Gray’s Motion (1999) The Times, 12 November: introduction
Held The Lords found, as expected, that the House of Lords Bill did not breach Art XXII, basically because subsequent statutes had repealed
The debate about parliamentary sovereignty may have received some
that provision. What is of interest is their reasoning in so finding, and
new fuel. Every first year law student knows that Parliament cannot bind
the comments made along the way.
itself and thus cannot adopt any ‘higher order law’, unalterable by subsequent parliaments. Neither of course can such ‘higher’ law be created by another body (apart from the EU). Hence, the familiar
Comment
Diceyean assertions about Parliament’s unlimited powers: there is no law
A straightforward way of disposing of the motion would have been to
which Parliament cannot change, so that even constitutional laws of
note simply that Art XII had been repealed, in the ordinary way, by a
great import may be changed just like any other rule; there is, therefore,
later statute (the Peerage Act 1963), so that no claim of breach of
no distinction between constitutional and other laws. The Act of Union
privilege could be made in reliance on it: end of story. Instead of doing
1707 expressed certain aspects of the constitutions of the newly created
this, Lord Hope (Lord Slynn and Lord Nicholls gave concurring
state of Great Britain to be fixed, variously, ‘for ever’, for ‘all time coming’
judgments), expressly seemed to leave open the possibility that other
or as ‘established and ascertained for ever’. These purportedly
parts of the Union Act might indeed not be susceptible to ordinary
entrenched matters included the separate Scottish legal system. Some
repeal by Parliament. First of all, he was at pains to point out that:
commentators have considered that the UK Parliament may indeed be
‘Words of entrenchment, such as the phrase ‘do after the Union and
bound by such provisions since it was constituted by the Act which
notwithstanding thereof remain in all time coming which was to be
contains them. The Scottish judiciary have indicated some sympathy
found in [other articles] were absent from Art XXII. This then was not
with this position. Thus, in MacCormick v Lord Advocate 1953 SC 396, it
one of those articles which were expressly made fundamental and
was said: ‘The principle of the unlimited sovereignty of Parliament is a
unalterable’. He went on to say, ‘it had never been suggested by any of
distinctively English principle which has no counterpart in Scottish
the academic writers on this subject that the provisions of Art XXII had
constitutional law.’ Now, at last, it appears that the House of Lords may
the character of fundamental law’. But, perhaps the most remarkable
have given some credence to the view that parts of the Union Act may
comments were the following, in considering the possibility that
indeed be entrenched. The issue is important, as it goes to the heart of
Parliament had acted ultra vires its powers by passing the House of
the most basic principle of the UK constitution – the sovereignty of
Lords Bill:
Parliament.
Whatever view a court might form on that matter, it was not open to the Committee to question the extent and
Facts
application of the doctrine of sovereignty of Parliament.
The Law Lords were sitting as the Committee of Privileges in the House
the character of fundamental law, which was an essential
of Lords – not as the Appellate Committee. They had to consider a
pre-requisite for the argument that Parliament went
motion put forward by Lord Gray, which raised the issue of whether the
outwith its powers when it enacted those repeals
House of Lords Bill 1999, whose primary purpose was to remove the
In addition, for the reasons already given, Art XXII lacked
[emphasis added].
rights of hereditary peers to speak and vote in the House of Lords, would
Several comments may be made about this approach. First of all, as the
breach the provisions of the Treaty of Union between England and
citations from Dicey mentioned at the outset indicate, under the
Scotland by removing the right of all current Scottish peers to sit in the
orthodox view, the UK constitution simply does not recognise the
House and making no provision for their replacement with other Scots.
concept of ‘fundamental law’, of a different character or ‘higher order’
Article XXII of the Treaty provided that 16 Scottish peers should have the
than an ordinary act of Parliament. As Ungoed J remarked in Cheney v
right to sit in the House of the Lords of the then new Parliament of Great
Conn [1968] 1 WLR 242, ‘statute’ is ‘the highest form of law that is
Britain.
37 • STUDENT LAW REVIEW • 2000 YEARBOOK
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known to this country’. Secondly, it may be asked, why did not Lord
currently available.
Hope at once dismiss the argument that Parliament had acted ultra vires
They have also been quite effective in terms of scrutiny. First of
as self-contradictory? A body with unlimited legal power cannot by
all, they have served as the focal point for the debate surrounding the
definition act ultra vires. As it was put in Cheney: ‘What the statute itself
Bill and the campaign to liberalise it. For example, The Guardian has
enacts cannot be unlawful, because what the statute says and provides
used the Committees’ reports as the main focus of its coverage of the
is itself the law.’ Even in Factortame (No 2) [1991] AC 603, when the
Bill. Secondly, the fact that the Commons Committee, although
House of Lords found that provisions of the Merchant Shipping Act
dominated by Labour members, has been so critical of many of the
were not compatible with provisions of directly effective EC law, they
provisions in the Bill, will encourage and legitimate an independent
did not declare the statute ultra vires or ‘invalid’ and strike it down.
and critical attitude by Labour’s backbenchers scrutinising the Bill in
Rather, they ‘disapplied’ parts of it, granting an injunction to prevent the
Parliament, as well as providing an informed source for MPs to turn to.
Secretary of State from enforcing the incompatible provisions.
Thirdly, the Reports have succeeded in forcing the Government into a
In contrast, the words of Lord Hope appear to recognise as valid
series of concessions on the Bill, with the result that some of its most
concepts both the notion of ‘fundamental law’ and the notion that
objectionable features were at least partially ameliorated even before
Parliament could, in principle act ultra vires. These remarks of course,
the formal legislative process begun. However, the Bill, as currently
do not even have the force of obiter comments from their Lordships,
drafted, is still subject to quite strong opposition from large numbers of
since they were not sitting as the Appellate Committee. Nevertheless,
Labour back benchers, as well as the Conservative and Liberal
they are a fascinating hint that the orthodox doctrine of sovereignty may
Democrat parties and indeed, is widely expected to provoke perhaps
not be as firmly entrenched in the attitudes of the judiciary as is
the largest rebellion by Labour MPs this government has so far
generally thought.
experienced.
The Freedom of Information Bill: pre-legislative scrutiny
Reform of the House of Lords: the transitional Chamber
The Freedom of Information Bill was given its first reading in the House
One of the longest standing anomalies of the UK constitutional order
of Commons on 18 November 1999. When enacted, it will, for the first
was at least partially rectified when the House of Lords Act 1999
time, given UK citizens a general statutory right to government
received Royal Assent on 11 November 1999. The Act removed all but
information. (It may be found, together with all Bills currently before
90 hereditary peers from the House of Lords. The Royal Commission
Parliament on the Web, at www.publications.parliament.uk/pa/
under Lord Wakeham will put forward proposals for a new second
pabills.htm.
chamber; it was originally asked to report by 31 December 1999, but it
The Bill represents an important plank of the government’s
is understood that this will not now happen until some time in 2000.
rolling programme of constitutional reform (and thus a likely area for
There will then presumably be an extended period of consultation,
exam questions) and various aspects of it will be covered in subsequent
including detailed consideration of the Royal Commission’s proposals
issues of the Student Law Review, as it makes it way through
by a Joint Committee of both Houses of Parliament, which will be
Parliament. Here, we will concentrate on the parliamentary response to
asked to produce its own recommendations in the light of the
the Bill so far, a response which shows that, despite all the talk of
Commission’s report. The government will then have to formulate its
Parliament becoming servile to the Executive and therefore redundant,
own position, publish a White Paper and then find time for the required
it is still capable of subjecting government measures to sustained and
legislation. The ‘transitional chamber’ will therefore have to serve for a
effective criticism.
considerable number of years in the interim. This piece will take a brief
The criticism and scrutiny to date has occurred because the
look at the issues surrounding this ‘new’ House of Lords.
government decided that the Bill should be one of those chosen for pre-
There was little serious argument in favour of retaining the
legislative scrutiny by Select Committees, one of the Labour
hereditary peers; the only real concern – that the services of peers of
government’s ideas for improving the legislative procedure. So, before
genuine talent and commitment would be lost to the nation – has been
commencing its legislative passage through Parliament, the Bill was
answered by the retention of the 90 Lords elected by their peers. There
considered in draft by two Select Committees: a specially convened
only serious concern related to fears that the new House would be less
House of Lords’ Committee, (HL 97 (1998–99), available at
independent of party in general, and Labour dominated in particular,
www.publications.parliament.uk/pa/ld/ ldselinf.htm) and the
thus providing less of a check upon the Executive. It is suggested that an
Commons’ Public Administration Committee reports, available at
examination of the facts shows these fears to be largely groundless.
www.publications.parliament.uk/pa/cm/cmpubadm.htm. The
The starting point is the composition of the reformed House. To
Committee has published a total of four reports. In the 1998–99 session,
the alarm of the superstitious, there are now 666 members of the House
these were:
of Lords. Of these, the biggest group is still the Conservatives, with 233
•
the Third Report, HC (1998–99) 570);
Peers; Labour has 183, the Cross Benchers 163, the Liberal Democrats
•
the Fifth Special Report – which contains the government
53, and there are 33 Bishops and ‘others’ (figures are taken from the
response to the above report (HC (1998–99) 831);
Lords’
•
the Fifth Report – gives the Committee’s response to the
pa/ld/ldinfo.htm – and are as at 1 December 1999): The party balance
government’s reply (HC (1998–99) 925);
is thus as follows: Conservatives 35%, Labour 27.5%, Cross Benchers
•
in the new parliamentary session, the Committee has already
24.5%, Lib-Dems, 8%, Bishops and others, 5%. The Conservatives thus
produced its First Report (HC 78).
remain the biggest group by a comfortable margin; Labour are only
These reports are the most useful source of critical comment on the Bill
38 • STUDENT LAW REVIEW • 2000 YEARBOOK
website
–
www.publications.parliament.uk/
slightly ahead of the Cross Benchers – indeed, the independent
C O N S T I T U T I O N A L members outnumber Labour if the Bishops are counted in. Thus, in theory, in order to get its legislation through the House, the government
L AW
bodies to make nominations [Modernising Parliament, para 9].
will have to persuade no less than 151 non-Labour Peers to support it.
Moreover, the Commission will not be an advisory body only: ‘The
Of course, these figures are artificial, since daily attendance will be
Prime Minister will have no right to refuse a nomination the
nothing like 666, but, unless Labour peers are significantly more
Commission had passed’ (Modernising Parliament, para 10), though the
diligent than the others in this respect, the above proportions of party
PM will determine the overall numbers of those to be appointed (para
strength will broadly hold good. In the unreformed House, out of a total
12). Formal appointments will continue to be made by the Queen, to
membership (in 1998) of 1,273, only 399 attended more than 50% of
whom the PM will forward the appropriate number of the
sessions. However, this did not favour Labour, indeed the reverse:
Commission’s recommendations (Modernising Parliament). It is
Conservative dominance was accentuated. Thus, while 43% of those
suggested that such a system would represent a clear improvement over
eligible to attend took the Conservative whip, around 49% of the
the previous unreformed House, in ensuring that mere political
regular attenders did so.
placemen or generous party donors are not nominated, that those with
The figures also reveal that the strong Cross Bench element in
valuable expertise continue to sit informed and detailed legislative
the Lords, far from being reduced, has been strengthened, in terms of
scrutiny and in providing a guarantee that a significant independent
proportion of membership. Around 14% of the total eligible
element will be retained. The key question is therefore: when will this
membership of the unreformed Lords were Cross Benchers (1998
Appointments Commission be brought into operation? The government
figures); as a result of the House of Lords Act, that figure has risen to
rejected numerous amendments to the House of Lords Bill which
24.5%, or virtually a quarter of the total.
would have set up the Commission as soon as the Bill passed, a fact
Thus, absent some mass creation of Labour Peers, talk of a
which does not inspire confidence in their determination to introduce
House full of ‘Tony’s cronies’ becoming ‘the government’s poodle’ can
this reform rapidly. This concern has however been somewhat
only come from ignorance. The government has in fact set out a series
ameliorated by the undertaking recently given by Baroness Jay for the
of principles in a White Paper which they say will govern appointments
government in the House of Lords (HL Deb col 1456 (1 Nov 1999)) that
to the transitional House (Modernising Parliament: Reforming the
government proposals for the Commission will be brought forward in
House of Lords (Cm 4183, 1998), Chap 6, available on the web:
the next session of Parliament, now just underway. If the government
www.official-documents.co.uk/ document/cm41/4183/4183.htm).
holds to this promise, and does not water down the independence and
These are as follows:
powers of the proposed Commission, then even the transitional House
•
no political party should have a majority in the House of Lords;
of Lords will be a substantial improvement over its unreformed
•
the government ‘presently’ seeks only ‘broad parity of numbers
predecessor.
with the main Opposition party; •
‘a significant independent, cross bench element’ will be maintained.
This sounds reassuring enough.
Modest reform of the judicial appointments procedure
On the other hand, the government has so far appointed an average of 66 Life Peers a year since it took office – three times higher
At present, the senior judiciary in England and Wales are appointed by
than the previous average; moreover, contrary to convention, over half
the Lord Chancellor after a series of confidential ‘soundings’ of other
of those have been Labour peers, fuelling fears that it is seeking at the
senior judges and QCs. There is no independent monitoring of the
least to make Labour peers the biggest group in the Lords; such concern
procedure. This procedure has been subject to a great deal of criticism,
is not eased by the fact that the government’s White Paper only stated
both because the Lord Chancellor is a member of the Cabinet, raising
that it did not ‘presently’ seek more than parity with the Conservatives.
questions as to the independence of the procedure and also because it
Perhaps more importantly, it is, and always has been, objectionable on
is widely considered that the system perpetuates the current make up of
constitutional grounds that the Prime Minister, the effective head of the
the judiciary: there are no black or Asian high court judges, no black
Executive, should appoint members of one chamber of the Legislature,
circuit judges, and only 42 women among the 534 full time judges in
and this objection gains far more force now that the large majority of
England and Wales, 70% of whom were educated at public schools.
that chamber – rather than as, previously, a minority – are so appointed.
Now, the Lord Chancellor has announced that he will
In response to this legitimate concern, the government has proposed
implement the recommendations of the Peach Report (available on the
that the Prime Minister’s historical power of patronage over peers will
web: www.open.gov.uk/lcd/judicial/peach/reportfr.htm). The key
be removed. Instead, an independent appointments Commission will
element will be the creation of an Appointments Commission, which
be established. The government has described the proposed
will provide independent monitoring of the appointments procedure. It
Commission as follows:
will also handle grievances and complaints and provide advice to the
The Commission will be an advisory non-departmental
Lord Chancellor on the workings of the judicial appointments system
public body. It will consist of representatives of the three
and areas where improvements or reviews should be undertaken. The
main political parties, and independent figures who will
reform is conservative and very limited: it will leave the basic
comprise a majority, one of whom will become the
procedures of the current system untouched and disappoint those
Chairman. It will operate an open and transparent
looking for the creation of an independent appointments panel.
nominations system for cross bench peers, both actively
However, in providing some independent assessment of the current,
inviting public nominations and encouraging suitable
closed system, it does at least represent a step in the right direction.
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The Wakeham proposals for the House of Lords: an overview and the government’s response by Gavin Phillipson, Lecturer in Law, University of Durham With the recent removal of the hereditary peers from the House of Lords, and the recent publication of the Wakeham Report on long term reform, some aspect of this topic is extremely likely to appear in public law examination papers this summer. (The Human Rights Act – also bound to be a popular topic for
Appointments Committee which would scrutinise proposals put
examiners – is covered in the Civil Liberties section.)
forward by the parties for new members of the House. It would be under a statutory duty to maintain an independent element of 20% in
Introduction The long awaited Report of the Royal Commission, setting out a blueprint for a reformed second chamber came out in January of this year. It had a generally lukewarm reception, and there were widespread predictions that the government, happy with the new, mainly appointed, chamber, would be in no hurry to implement the Report,
the House, to ensure that at least 30% of new members were women and that minorities were represented in numbers at least proportionate to their representation in the total population. The powers of the Prime Minister in this area would be wholly removed: the Committee would have sole jurisdiction over appointments and be under no obligation to accept any nominations put to it.
and might indeed, be quite content for the issue of reform to quietly slip out of the political limelight. This article offers a broad, critical overview of the Report’s main recommendations and analyses recent indications of the government’s attitudes to them. Future articles in this journal will examine particular aspects of the Report’s recommendations.
The main recommendations: an overview
The government’s response: first indications The Report was recently debated extensively by the Lords (HL Deb cols 911–1036, 7 March 2000). The debate was of some importance, as it was the first real opportunity of ascertaining the government’s
The Report (A House for the Future, Cm 4534) is available on the web:
likely response to the Report, and the press has been full of stories that
www.official-documents.co.uk/document/cm45/4534/4534.htm. The
the government intends to ‘kick the Report into the long grass’, or, as
basic principles it suggests can be briefly stated: the powers of the new
Baroness Jay for the government put it during the debate, ‘consign [it]
chamber will be broadly comparable with the present Lords, though it
to a dusty top shelf’. For those who wish to see further reform, the
does suggest changes to its powers over delegated legislation (see
outcome of the debate was welcome in one respect: a clear
below). It has thus rejected the suggestion, favoured by the Liberal
commitment in principle that further reform of the Lords would be
Democrats, amongst others, that the new chamber should have powers
implemented was given by the government. Baroness Jay said:
to delay a Bill certified by the Speaker as affecting human rights or
So today perhaps I may say it clearly. The government
important constitutional matters for the life of a parliament.
accept the principles underlying the main elements of
However, it is the suggested composition of the new House which has proved most controversial. The Report suggests a mainly
the Royal Commission’s proposals on the future role and structure of this House, and will act on them [col 912].
appointed House of 550, with a minority of elected members to
Government spokespersons also made it clear that they accepted the
represent the regions. Unable to agree on an appropriate size for the
key elements of the proposals: a ‘small elected element’, a statutory
democratic element, it instead put forward three options: Option A, 195
appointment’s committee for the majority nominated element and a
elected peers, which would be a substantial element, at over one-third
strong element of independent members. The use of the word ‘small’,
of the total membership; Option B, 87; Option C, 65 members. These
however, clearly implies a governmental preference for Options A or B
latter two options are clearly somewhat token-ist in nature. The
in relation to the proportion of elected peers. As regards the party
remainder of the House would be appointed by a statutory independent
political element, Baroness Jay said: We also agree that no party should seek a majority in the
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second Chamber and that the balance of political
unlikely to offer any distinctive voice in the legislative process. Electing
representation should be determined according to the
the second Chamber might well also jeopardise the current value of its
votes cast in the preceding general election [col 915].
work, in that its expertise and the presence within it of a range of
The government also made it clear that it accepted the case for a non party-political element, though it did not indicate any acceptance of the suggested 20% figure in the Report. As to powers, the government were emphatic as to the new chamber’s clearly subordinate status:
viewpoints beyond party orthodoxies would be wholly lost. If, for these reasons, it is accepted that the new Chamber should have a mixture of party politicians, independents, and experts within it, then the Wakeham proposals begin to look much more attractive. The elected element would be there, partly to help fill up the quota of
The most important role of the second Chamber is to
whipped members which the parties will insist upon, but also to give
scrutinise, and, if necessary, revise legislation. But it must
the House an increased sense of legitimacy and encourage it to use its
do so as the subordinate Chamber. The Royal
powers to make the government think again, particularly where issues
Commission’s Report recommends that the principles
of basic rights, the protection of unpopular minorities and/or
underlying the Salisbury convention should also be
constitutional change are at stake. The quite astonishingly draconian
retained. The government agree [col 912, Baroness Jay].
Terrorism Bill going through the Commons at present cries out for
This would, of course, mean that the Lords would not reject, nor wreck
revision by a confident and independently minded second Chamber,
legislation promised in the governing party’s manifesto. But it is clear
not cowed by the political fear of appearing ‘soft on crime’. The recent
that the government saw the Lords’ subordination as extending much
Lord’s rejection of the government’s attempt – wholly un-signalled in its
further than merely accepting manifesto bills. Baroness Jay went on:
manifesto – to restrict the right to trial by jury is a case in point, on
‘The elected Chamber and the government must have an expectation
which see further below.
that legislation that has been proposed and approved by the other place
The proposed appointments committee, wholly independent of
will get through’ (cols 912-13). In other words, the Lords should
government, having sole power of nomination, and under a statutory
generally not reject any Commons-approved government Bills.
duty to maintain a 20% proportion of independents, and decent
Moreover, she was markedly cautious over the Report’s proposals to
representation for women and minorities is also a welcome proposal
increase the powers of the new Chamber over delegated legislation,
and is an enormous improvement on the present system of legally
remarking only that this would require ‘detailed consideration’ (col
unfettered Prime Ministerial patronage. The sense it would give, that
913).
members appointed were not merely the Prime Minister’s poodles but had gone through some independent selection procedure, would boost
Comment The present writer would argue strongly that the calls for a wholly elected House are simplistic and misguided. Most commentators on the current House agree that much of its value flows precisely from the fact that it is not elected (see, for example, Hadfield (‘Whither or whether the House of Lords’ [1984] 35(4) NILQ 313) and Norton (for example, his essay in Jones (ed), Politics UK, 1994, p 354)). Amongst other things, its un-elected nature leads to is relative political independence, its freedom from populist pressures, and in particularly the presence of experts in various fields, which gives its scrutiny of legislation an edge and mastery of important points of detail generally lacking in the Commons. The most common objection to a wholly elected House is that it would become simply a rival to the Commons, resulting in political impasse (see, for example, Baroness Jay, col 914). In the author’s view, this objection is somewhat simplistic as it fails to take account of the fact that new chamber could, via legislation, be given a clearly subordinate role, and a different purpose from the Commons (that is, to act as present as a scrutinising and revising House, rather than one which challenges the Commons on matters of basic principle). If members of the new body took their seats on this basis, on the clear
the legitimacy of the new House considerably, especially when combined with the elected element. There would be a perceived mandate to take a more assertive stance when confronted with draconian measures which had been pushed through a tightly controlled Commons. The good news, then, is that the government appears to accepts all these basic principles, though their preference seems fairly clearly for quite a small elected element. The statutory independence of the Appointments Committee is a particularly vital point. The main question left hanging after the Lord’s debate was the key one of timing: when will reform start to roll? It will be a prolonged process. It was common ground that before there was even any prospect of legislation, a Joint Committee of both Houses should be set up to consider Wakeham and make a further Report. After that, there would presumably have to be Green, then White papers, and then a draft Bill. Despite being repeatedly asked, the government gave no real indication as to when even the first stage of this protracted process, the establishment of the Joint Committee might take place.
‘More legitimate’ Lords flex their muscles
understanding that, democratic as they were, their role was not to
In the previous volume of this journal, the make up of the reformed
challenge the basic supremacy of the Commons, then serious conflict
House of Lords, shorn of all but 90 of the hereditary peers, was
over the basic principles of legislation should not arise in normal
discussed (‘Reform of the House of Lords: the transitional Chamber’
circumstances.
(2000) 29 SLR 15). It was argued there that fears of the transitional
The real objection to a fully elected Chamber is that, as with all
House becoming ‘Tony’s poodle’ were misplaced and based on
elections, it would be practically impossible for any, save perhaps a few
ignorance of crucial facts, in particular, the presence of a strong
well known mavericks (Ken Livingstone in mind) to win a seat without
independent element (24.5%) and the fact that the Labour party, with
standing as a member of one the main political parties. Thus, the new
only 27.5% of the seats, are nowhere near having an overall majority in
Chamber would be more dominated than now by whipped party
the ‘new’ Lords.
members. When both Chambers were dominated by the same party, as
What was unknown at that point was whether the reformed
would generally be the case, the second Chamber would be most
House would react to its small increase in legitimacy by becoming
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more assertive in its relations with the Commons. It is a truism of British
In general, there was strong support for a more assertive attitude
constitutional practice that the main restraints on the powers of the
on the part of the new House. Lord Mackay noted that a government
Lords are self-imposed. The legal restraints upon its powers, the
spokesperson (the Lord Privy Seal) had stated in the House Magazine
Parliament Act procedures, have been used only four times since they
on 27 September 1999 that the ‘new’ House of Lords ‘will be more
were introduced in 1911. It is the conventional restraints on the
legitimate, because its members have earned their places, and therefore
exercise of its own powers which, in practice, keep it firmly subordinate
more effective’ (col 143). The Earl of Onslow said emphatically:
to the Commons, and thus the government. Aside from the Salisbury
... this House now has legitimacy, which it has not had
convention (that the Lords should neither reject nor pass wrecking
since 1911 … I can do what I would not have done [in
amendments to manifesto Bills), the Lords are in general very reluctant
the old House]. Then … the House lacked legitimacy,
to vote down the main principle of any government Bill, preferring to
and also … there was an imbalance in the House. The
revise and amend only, as illustrated by the lack of resort to the
imbalance has been rightly destroyed and we have been
Parliament Acts procedure by governments in the last 90 years. The
given new legitimacy [cols 163–64].
Lords are also in general reluctant in practice to restore amendments
Such attitudes could also be seen in the response of the Lords to a
which the Government has had overturned in the Commons. Also
controversial piece of primary legislation, which would have restricted
firmly established as at the least an entrenched custom, if not exactly a
the right of a defendant to choose trial by jury. The heart of the
constitutional convention, was the notion that the Lords would not use
government’s Criminal Justice (Mode of Trial) Bill was cl 1, which
their powers – left untouched by the Parliament Acts – to vote down
removed the right of defendants to choose jury trial in ‘either way’
subordinate legislation
offences, such as theft and burglary. The crucial part of the debate took
In a recent outbreak of assertiveness, however, the Lords have
part in Committee stage (HL Deb col 1246 ff, 20 Jan 2000) and only got
now both wrecked an entire government Bill, forcing it to be
as far as cl 1. The very first amendment put down restored the right of
withdrawn, and voted down a piece of subordinate legislation. In taking
the defendant to be tried by a jury in such cases at his election, and
such drastic action, members of the House specifically referred to their
thus ripped the heart out of the Bill. It was therefore what is commonly
newly increased legitimacy as justification for a more muscular
referred to as a ‘wrecking amendment’, since it altered the fundamental
approach to their traditional role as a revising and amending chamber.
principle of the legislation. This amendment was carried by the Lords
It was during the Lord’s debate on a piece of secondary
by a large majority: 222 votes to 126. The government spokeswoman,
legislation that the most specific claims of its greater legitimacy were
Baroness Jay immediately announced that, since the Bill ‘no longer
made. The dispute was over the refusal of the government, in its
represented government policy’, it would be withdrawn (col 1297).
legislation governing the London Mayor and Assembly, to give
It is important to note that the Bill started life in the Lords, not
candidates a free ‘mail shot’ to the electorate. The Lords chose to
the Commons. Therefore, by effectively throwing out the Bill, the Lords
express their discontent on the matter in a novel way: they voted upon
had prevented the Commons being able even to see it. A report in The
a piece of delegated legislation (the Greater London Authority (Election
Times remarked that this was the ‘first time in memory’ that ‘a
Expenses) Order 2000), which dealt with the nuts and bolts of the
mainstream Bill’ had been ‘killed … before it had reached the elected
London mayoral and assembly elections, in particular the amount of
House’. As Lord Windlesham put it, ‘This [was] a significant moment in
electoral expenditure which candidates would be allowed to incur. The
the short life of the reformed House’ (col 1273).
Order required only negative approval, that is, it would go through automatically unless voted against. It appears that the Lords have only in fact rejected secondary legislation once this century (see Brazier, Constitutional Practice, 2nd edn, 1994, p 254, fn 119), in 1968, in
The interrelationship of national and EC law
relation to a sanctions order against Rhodesia. That, in fact, was an
This topic is a perennial favourite with examiners. The complexities and
order requiring positive approval from the Lords: Erskine May reveals
arcane terminology of matters such as ‘indirectly effective directives’,
that they have never voted down orders requiring only the negative
‘horizontal’, ‘vertical’ application and the Francovich principle often
approval procedure. Nevertheless, the Lords, to the consternation of the
bring first year students out in a cold sweat and render the subject one
government, threw the Order out and, in doing so, quite clearly relied
which is very suitable for problem questions in examinations. Such a
up on their newly reformed status. During the debate, there was some
question is reproduced below (courtesy of Steve Peers of Essex
disagreement about whether the practice of the Lords not to reject
University) and a model answer is given. It seeks to illustrate the
secondary legislation had achieved the status of a constitutional
methodical, step by step approach by which such questions must be
convention. Some peers certainly took this view. Lord Hughes, for
tackled, and also involves discussion of all the recent case law in this
example, said that, ‘in relation to orders [it was my understanding] that
area.
secondary legislation may be challenged only on the grounds that it is not in accord with primary legislation’ (HL Deb col 164, 22 February 2000). Others firmly rejected such a notion, pointing to the House’s
Question
resolution of October 1994: ‘That this House affirms its unfettered
Camilla, a saleswoman for Royal Gyms, knocks on Dian’s door
freedom to vote on any subordinate legislation submitted for its
and offers to sell her a gold-plated gym set. Diana, who weighs
consideration’ (HL Deb col 356, 20 October 1994). Others still, such as
20 stone after a recent binge, readily agrees.
Lord Cranbourne for the Conservatives (HL Deb cols 151–52, 22
Ten days later, Diana decides that she cannot afford the gym
February 2000), appeared to believe that while there may have been a
set, which she has since taken delivery of. She has heard of a
Convention that the House would not reject such legislation, it would
new EC Directive, which Member Sates had to implement the
not apply now, the House being a reformed chamber which was not
day before Camilla sold her the gym set, which allows
necessarily bound by the Conventions of the unreformed House.
consumers to return any goods they had purchased from door
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to door salespersons within two weeks of purchase (instead of
Directive against RG and nor will that directive override national law:
one week as provided for under current UK law).
both the ECJ and the UK courts have made clear that incompatible
She therefore rings Camilla and demands her money back.
national legislation is not overridden by indirectly effective directives
Camilla cackles to her that the Queen has refused to give Royal
(see, for example, Faccini Dori v Recreb; Webb v Emo Cargo [1993] 1
Assent to the national legislation implementing the Directive,
WLR 49, HL).
and tells Diana that she has already spent Diana’s money on her boyfriend. A distraught Diana hurls herself down the stairs
Since Diana cannot rely upon the Directive directly, further options must be explored.
and hits the treadmill that is part of the gym set. This explodes, causing Diana about £50,000 in personal injuries. However,
(ii) Use of indirect effect
she loses five stone while in hospital.
Under the doctrine of ‘indirect effect’, national courts have an
Advise Diana of her rights and remedies under EC law.
obligation to construe any relevant national legislation so as to conform with the provisions of any relevant EC law, where this is possible. This
Comment This is a typical, mischievous problem question, in which students must be careful to filter out the key elements from mere entertaining detail. Note also the limitation: only rights and remedies under EC law must be discussed. Possible claims in domestic law, under say negligence or consumer protection legislation, may therefore be safely ignored.
Answer
can involve quite drastic interpretative measures, such as ‘reading in’ words into a domestic measure, or ignoring its apparently plain meaning (see, for example, the approach of the House of Lords in Litster v Forth Dry Docks Ltd [1989] 1 All ER 1194 and Pickstone v Freemans [1988] 3 WLR 265. At one point, it seemed as if the ruling in Marleasing SA v La Commercial Internacional de Alimentacion SA (Case C-106/89 [1990] ECR I-4135) required domestic courts faced with legislation which ran directly counter to the terms of an indirectly effective Directive to give effect to the Directive regardless of the terms
Diana has two claims that she will wish to pursue: (a) the cost of the
of the national legislation. However, in Faccini Dori v Recreb, the ECJ
gym set; and (b) damages for personal injury. These will be considered
made it clear (at para 26) that the obligation on the domestic court was
in turn.
only to ensure such compatibility where the wording of the national law made this possible. The House of Lords in Webb v Emo Cargo had made it clear that, as a matter of national law, the absolutist
Cost of gym set
interpretation of Marleasing would not be accepted. In the instant case,
Diana has no right under national law to demand the purchase price
the relevant provisions of law are the UK legislation on the right to
from Camilla under national law because she has not sought to return
return goods and the new Directive. Diana would seek to argue that the
the gym within one week. She will therefore wish to know whether she
former should be construed into compatibility with the latter. The
may rely upon any provisions of EC law.
problem is that the domestic provision – giving a right to return goods
The new EC Directive gives the right to return such goods
within seven days – presumably at some point has the words ‘seven
within two weeks. Its due date for implementation was the day before
days’ as the time within which goods may be returned, whereas the
Camilla sold Diana the gym. If Diana could rely upon this Directive, it
Directive has the words ‘14 days’. The only way of achieving
would give her the right to return the gym, as she sought to return it
compatibility with the new directive would be for the court effectively
within 10 days.
to delete the word ‘seven’ (days) in the national provision and replace it with the word ‘14’. This would amount not to the interpretation, but the
(i) Can Diana rely upon the Directive directly?
re-writing of legislation, and thus the court, following Webb, would be
Directives which have not been implemented or have been improperly
likely to hold that it went beyond what was legitimate. In conclusion, Diana apparently cannot rely upon national law
implemented may give directly enforceable rights to citizens of Member States (‘direct effect’).
to claim the price of the gym set, even with the benefit of indirect effect.
Directives have direct effect if they fulfil certain criteria (laid down in the case of Van Duyn (Case 41/74 [1974] ECR 1337)). These
(iii) A claim for damages against the State?
are that the Articles of the Directive on which the individual seeks to
The third possibility for Diana is to claim damages – for the loss of her
rely are sufficiently ‘clear, precise and unconditional’. The Directive in
opportunity to return the gym set – directly against the UK government.
issue here, stating that consumers should have the right to return goods
The basic conditions for such liability were set out in Francovich and
within two weeks, appears prima facie to satisfy that criteria.
Bonifaci v Italy (Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357)
However, Diana is seeking to rely on the rights in the Directive
and modified by subsequent case law including Factortame (No 3) and
not against the State but what is presumably a private company, Royal
Brasserie du Pêcheur (C-46/93 and 48/93 [1996] ECR I-1029) and are
Gyms (‘RG’) (it is assumed that RG could not be seen as an emanation
now as follows:
of the state under the test laid down in Foster v British Gas, Case C-
•
the Directive must have been intended to confer rights on the
•
the State must have committed a ‘sufficiently serious’ breach of
•
there must be a direct causal link between this breach and the
individual concerned, the content of which are identifiable;
188/89 [1990] ECR I-3313). The ECJ has laid down a clear rule that Directives, unlike Regulations, do not have horizontal effect, that is,
EC law;
they do not give individuals enforceable Community law rights against other private bodies, but only against emanations of the state (Marshall v Southampton and South West Hampshire Area Health Authority (Case 152/84 [1986] ECR 723) and Faccini Dori v Recreb (Case C-
damage suffered by the applicant. Although we are not given details of the new Directive, it appears clear
91/92 [1994] ECR I-3325)). Thus, Diana cannot rely directly upon the
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L AW that it is intended to confer a specific right upon individuals – to return goods within 14 days; thus, the first criterion is satisfied. As to the second, it is clear that a wholesale failure to implement a Directive in time, such as we have here, will constitute a sufficiently serious breach (Dillenkofer v Germany, Cases C-178-9, 188-190/94 [1996] ECR I4845). The third criterion is also apparently satisfied: Diana has clearly lost the opportunity to return the gym as a direct result of the UK’s failure to implement the directive. While the gym has in fact been destroyed by Diana’s own actions, it is apparent that she would not have done this had she been entitled to return it and thus would have been able to return it. In conclusion, Diana appears to have a good claim for damages against the UK government for the cost of the gym set. The issue of her attempted claim for damages for personal injury will now be examined.
Damages for personal injury Diana has suffered £50,000 worth of personal injury. There may be a possible claim in national law in tort, under consumer protection provisions and/or at common law in negligence but the question does not ask for consideration of purely domestic causes of action. Under EC law, the only possible claim appears to be against the state, under the Francovich principle, discussed above. (There is no suggestion in the question that any provisions of EC law relate to a claim against the sellers.) The claim would be that the failure of the UK to implement the Directive caused Diana’s injuries, since they occurred as a result of her hearing that the national implementing legislation had not been passed. As discussed above, the first and second criteria of the Francovich claim are readily made out in relation to this Directive. However, the third is apparently certainly not: there is no direct causal link between the failure to implement the directive and Diana’s injuries because Diana’s own act, in hurling herself down the stairs, would almost certainly constitute a novus actus interveniens, that is, a break in the chain of causation. Issues of causation arising in such claims are determined by reference to the relevant country’s national law, subject to the principle that they must not be so restrictively framed that the action fails to provide an ‘effective remedy’ for breaches of EC law (Factortame (No 3) and Brasserie du Pêcheur (above)). Detailed discussion of the law governing causation in tort actions would be beyond the scope of this question, but it is submitted that such a plainly irrational and foolhardy act as deliberately throwing oneself downstairs would act as a break in the chain of causation. It is therefore concluded that Diana would have only a very remote chance of success should she seek to claim damages for personal injury.
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Judicial review and the constitution after the Human Rights Act by Gavin Phillipson, Lecturer in Law, University of Durham The Human Rights Act 1998 comes into force on 2 October 2000. For the first time, it will render the basic rights contained in the European Convention on Human Rights directly enforceable against public authorities in the United Kingdom. Students taking Public Law or Constitutional and Administrative Law
It shall be unlawful for a public authority to act in a way
courses starting this academic year will find that the Human Rights Act
which is incompatible with one or more of the Convention
(HRA) will form an extremely important part of the courses they take.
rights.
The purpose of this article – which will concentrate exclusively on this
This provision engenders a truly radical change in the UK constitutional
radical upheaval in the UK constitutional order – is to examine two
order. Under judicial review principles prior to the HRA, the act of a
main issues relating to the Act: the first is its impact on judicial review
public authority could be quashed by the courts on the grounds that it
– the central mechanism in the UK constitution for ensuring the legal
had failed to have any regard at all to the Convention rights at stake, or
accountability of government; the second, its implications for the
that the rights violation caused by the public authority was so serious in
traditional doctrine of parliamentary sovereignty.
comparison with the benefits secured by it that the action could be considered Wednesbury unreasonable (a step which no reasonable
The HRA and judicial review
authority could take). However, up till now, the rights were not directly binding on such authorities: one could not argue that decisions or acts of
The key provisions of the HRA
public authorities were unlawful on the basis that they violated
As is now well known, there are really two key provisions in the HRA.
free-standing status. A new head of judicial review will be added which
The first is the strong interpretative duty it lays upon the courts. Section
will be simply: that the authority has violated the applicant’s Convention
3(1) states:
right(s). The court will make this determination for itself, as a matter of
So far as is possible to do so, primary ... and subordinate legislation ... must be read and given effect to in a way which is compatible with Convention rights.
Convention rights per se. Now, for the first time, the rights will have this
law. However, there is an exception to this s 6(1) duty. Under sub-s (2), if the public authority was forced to act as it did by a provision of
It should be noted that this applies both to legislation passed before
primary legislation, or was enforcing an incompatible legislative
and after the HRA itself. The strong wording of this provision was
provision, its act remains lawful. How important this exception proves to
remarked upon both in Parliament and by a number of commentators.
be in practice will depend upon how rigorously the courts take their
Although the matter is not free from doubt, it seems fairly clear that this
duty under s 3 to interpret legislation compatibly with the Convention
provision, in effect, changes the normal rules of construction in
rights if possible: if the courts nearly always succeed in achieving such
relation to statutes which have a bearing on Convention rights: a
compatibility through interpretation, then sub-s (2) will have very little
reading which renders them compatible must be adopted unless such
application in practice.
a reading is impossible because of the plain words of the provision in question. While government spokesperson vacillated somewhat when questioned about this in Parliament, it seems that s 3(1), on its face,
The three types of Convention Articles and the different inquiries they demand
will require the courts to adopt even strained and unnatural interpretations of statutes, where this is needed to ensure compatibility
In order to envisage the operation of this new head of judicial review in
with the Convention rights. Of course, its operation in practice
practice and, in particular, the structure of arguments based upon the
depends upon how seriously the judges take their new duties under
HRA, it is necessary for students of the constitution to understand that
the Act.
the Convention rights protected by the HRA are in fact of three quite
The second key provision of the HRA is s 6(1), which provides in effect that administrative acts of public authorities must not infringe Convention rights.
different types, each necessitating a different kind of inquiry by a court. The first type may be referred to as absolute rights, in the sense that, under the Convention, there is no lawful justification for their infringement. The rights which fall into this category are Art 3 (freedom
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from torture), Art 4 (freedom from slavery and forced labour), Art 7 (the
(1)
right to non-retroactivity in the criminal law) and Art 6 – the right to fair trial, which is unconditional except for the guarantee that trials be held in public, which may be departed from if necessary. Thus, in relation, to these rights, if a prima facie violation by a public authority is found, that act is automatically unlawful under the Convention, without the need for further inquiry. (Article 12 (the right to marry) is in a class of its own. While not subject to express limitations, it is subject to an implied one, namely, that marriage must be in accordance with national law.) The second type of right are those subject to specified, narrow limitations. Into this category comes Art 2 (the right to life), and Art 5 (liberty of the person). These rights are subject only to narrowly drawn and particular exceptions: for example, the right to life is qualified only by the exception that lethal force may be used if ‘absolutely necessary’ for self-defence, the protection of others, or the quelling of riots. Thus, in relation to this class of rights, if a prima facie violation is found, but the public authority claims that their action is nevertheless lawful under the Convention, a two part inquiry must be followed. The
Does the action taken prima facie infringe a Convention right at all?
The first stage is to determine whether the act of a public authority has had any prima facie impact on one of the Convention rights. For example, suppose that a police force takes action to curb a riot, by arresting those taking part. If a complainant alleged that this violated Art 11 of the Convention, the claim would fail at the first stage, because only the right to ‘peaceful assembly’ is protected under Art 11(1). If it was found that the action of the public authority did constitute such a prima facie violation, how the court proceeded would depend upon which type of Convention right was in issue. If it was one of Arts 3, 4, 6 or 7 (our first category of ‘absolute rights’), the court would not need to consider the question of whether the restriction on the right was justified on the Convention but would proceed at once to stage (3) below. If it was any of the other rights, the court would have to consider this question:
(2)
court must act itself whether the restriction on the right constituted by
Is the restriction on the right justified under the Convention?
the disputed act is:
Resolving this issue would require carrying out either the two or four
(a)
prescribed by law (that is, authorised by a provision of national
stage test set out above. In other words, for either of Art 3 or 5 (rights
law); and
subject to specified narrow exceptions), the court must ask a two stage
falls into one of the specified categories of exceptions (for
question: was the restriction:
example, was necessary in self-defence).
(b)
(a)
prescribed by law; and
If the court is satisfied that both of (a) and (b) are made out, the action
(b)
within one of the specified categories of exceptions.
will be lawful under the Convention.
If the right in question was one of Arts 8–11, the court, if both the above
The third category is rights subject to general exceptions. Into this category fall Arts 8–11, namely, the rights to privacy (Art 8),
questions were satisfied, would have to go on to ask: •
was there a ‘pressing social need’ in a democracy to restrict the
of assembly and association (Art 11). These rights are subject to broad
•
did the action taken go no further than was necessary?
and general exceptions, including national security, the protection of
If, having run through this two or four stage test, the court found that
health or morals, prevention of crime or disorder, protecting the rights
action was lawful under the Convention, the claim would stop there,
of others, public order, upholding the authority of the judiciary and so
the applicant losing. If, however, it found that the action was unlawful
on. It should be noted that some of these Articles have more exceptions
under the Convention, that would not exhaust the inquiry as a matter of
than others; the list of exceptions differs in each case.
UK law. The court would then have to go on to a third question:
freedom of religion (Art 9), freedom of expression (Art 10), and freedom
right?; and
For this third type of Article, a court must follow stages (a) and
exceptions and then, additionally, it must deploy the proportionality
Was there a breach of s 6(1) of the Human Rights Act (the duty to act compatibly with Convention rights)?
test: was it ‘necessary in a democratic society’ to restrict the right (for
The answer to this question will be yes, unless s 6(2) applies, that is,
example, free expression) in order to protect one of the specified
unless the authority could claim that it had been forced to act as it had
societal interests, for example, public order?
by a provision of primary legislation or that it was enforcing a provision
(b) above – it must ask whether any restriction on the right was (a) prescribed by law and (b) falls into one of the specified categories of
This proportionality test, the European Court has found, itself breaks down into a two stage test: (1) (2)
was there a ‘pressing social need’ in a democracy to protect, for
(3)
of incompatible primary legislation, recalling that legislation must be interpreted compatibly with the Convention ‘as far as possible’ (s 3(1)). This brings us to the final stage – the result. If the court finds that
example, public order?; and
s 6(2) applies, then the applicant loses the case, because the authority’s
did the action taken to protect e.g public order go no further
action remains lawful as a matter of domestic law. The court will then
than was necessary?
issue a declaration of incompatibility under s 4 of the HRA. If it is found
With the above classification in mind, we can now move on to an
that s 6(2) does not apply, then the applicant wins – the public authority
analysis of how, in practice, arguments alleging breach of a Convention
had acted unlawfully as a matter of domestic law under the HRA.
right will be structured in an application for judicial review.
How rights arguments will be structured in judicial review
The second main issue considered here, in the light of the above discussion, is the constitutional impact of the HRA.
The HRA, sovereignty and ‘higher law’
It is suggested that the argument will proceed in three main stages, as
It is common for Bills of Rights to be given a higher status in law than
follows.
ordinary legislation. This may mean that they are incapable of repeal at all (as with certain provisions of the German Basic Law); that a special procedure (two-thirds majorities or the like) are required for such repeal
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(as under the US constitution), or that repeal may be effected by
statements, which would cause immediate international condemnation,
ordinary legislation, but only if that legislation states in express terms
will inevitably act as a powerful deterrent against the introduction of
that such is its intention (as under the Canadian Constitution). What is
such clearly incompatible legislation. Open infringements of the
the position for Britain’s new Bill of Rights, the Human Rights Act?
Convention will therefore become almost inconceivable.
The formal position is quite clear. If any statutes passed after the
At the same time, the possibility of inadvertent legislative
HRA contain provisions found to be inconsistent with any of the
infringements should be removed, since Parliamentary Counsel will
Convention rights, the HRA itself states that such statutes will remain
have to scrutinise the Bill prior to its introduction into parliament to
valid and of full effect (ss 3(2)(b) and 4(6)). Here, the Act in effect simply
ensure its compatibility with the Convention, so that the Minister
confirms the orthodox constitutional position, that later statutes override
responsible can make the statement of compatibility to parliament
previous inconsistent ones. In this respect, the HRA is of the same status
under s 19. What is likely to slip through both these safeguards is
as any other Act of Parliament.
ambiguously worded legislation, which may infringe Convention rights,
However, in relation to statutes passed prior to the HRA, the Act
depending upon how it is interpreted by the courts. Such legislation
provides for a departure from orthodoxy. Under the doctrine of implied
should however be dealt with by the courts under s 3(1) of the Act: that
repeal just mentioned, one would expect that, where it was found that a
provision should ensure that ambiguous legislation is always interpreted
provision in a statute predating the HRA was incompatible with one or
compatibility with Convention rights. Thus, since openly incompatible
more of the Convention rights, that provision would be thereby
legislation is most unlikely to be introduced by any government,
impliedly repealed. However, ss 3(2)(b) and 4(6)) do not take this route:
inadvertent incompatibilities weeded out prior to parliamentary
by stating that the provisions of any statute found to be incompatible
scrutiny, and ambiguities resolved in favour of the Convention by the
with Convention rights remain valid and in force, they have the effect
courts, the effect may be that, in practice, Parliament no longer passes
that the doctrine of implied repeal will not apply to the HRA: in other
legislation which, once interpreted by the courts, infringes Convention
words, where a provision of an earlier statute is found to be
rights.
incompatible with a Convention right, it will nevertheless remain in
All this could of course theoretically be removed, simply by
force. In this respect, the HRA is actually weaker than an ordinary Act
repeal of the HRA. But this will be highly unlikely (the Conservatives,
of Parliament. The innovation it introduces is of course, the formal
while they opposed the HRA, have no plans to repeal it if they form a
judicial declaration of incompatibility under ss 4 and 10, which can
government), so that Convention rights will de facto be protected from
trigger the parliamentary ‘fast track’ procedure to amend the offending
legislative, as well as administrative, infringement.
legislation by means of secondary legislation. This provision however, leaves Parliament entirely free as to whether to remedy the incompatibility which the courts have found to exist. The above, then represents the formal position under the HRA. However, there remains the question whether, while as a matter of law, the Act represents no threat to parliamentary sovereignty, it may nevertheless amount to a kind of de facto ‘higher law’? In this respect, of relevance is the duty of Ministers introducing legislation under s 19 of the HRA. Under that section, Ministers must make a statement when introducing legislation into parliament that it does not infringe Convention rights, or that they believe it does, but they wish to proceed in any event. Statements of the latter kind would amount to a declaration that the UK intended deliberately to violate its treaty obligations and breach international law. The necessity of making such
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Articles What is ‘total failure of consideration’? ......................................................................50 Terminological traps for contract students..................................................................53 Making electronic contracts ......................................................................................56
Case notes Her Majesty’s Attorney General v Blake ....................................................................58 Alfred McAlpine Construction Limited v Panatown Limited ....................................59
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What is ‘total failure of consideration’? by Janet O’Sullivan, Fellow in Law, Selwyn College, Cambridge Introduction When studying the complex topic of remedies for breach of contract, students (not surprisingly) concentrate their thoughts and efforts on the primary remedy, namely, damages, learning about the various measures of damages, mitigation and remoteness of damage. They also get to grips, eventually, with the principles which govern the
damages, can he opt simply to claim back the money paid in advance?
award of specific remedies (such as specific performance and
And more to the point, why would he want to? A few examples will
injunctions). But even the most confident students recoil in horror and
help illustrate the problem.
confusion whenever they come across that odd section of their books devoted to the so called ‘restitutionary’ remedies: ‘recovery of money on
Example 1
the basis of total failure of consideration’ and (worse still, because of the
Imagine a contract between between P and D for the manufacture and
Latin!) the award of a reasonable sum on the basis of ‘quantum meruit’
sale to P of a large machine. The contract price is £300,000 and has
and ‘quantum valebat’. This article will attempt to dispel some of that
been paid in full by P to D in advance (an unlikely commercial
confusion, although, as will be seen, this is an area of academic
scenario, but no matter!). The market value of the machine is £400,000.
controversy, and will aim to make matters a little easier by concentrating
D breaches the contract and does not deliver the machine to P.
just on the recovery of money paid and the hellish notion of ‘total failure of consideration’.
Here, P is not going to be bothered about whether there is or is not a remedy allowing him to get his money back. The reason is that a damages remedy will give him more than the amount he paid in
The problem in context It is elementary law that a breach of contract does not automatically bring a contract to an end: instead, some (but not all) breaches give the innocent party the option to terminate the contract. The only sort of breaches which give this option to the other party are: (a)
any breach of a condition (see, for example, the famous sale of goods case of Arcos Ltd v Ronaasen & Son [1933] AC 470); and
(b)
a serious breach of an innominate term (explained in the seminal judgment of Diplock LJ in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26).
Also remember that, even before performance of the contract is due, one party can commit an ‘anticipatory breach’ of it by indicating that he is unable or unwilling to perform his or her obligations when they fall due, which equally gives the innocent party the option to terminate the contract. When such a breach occurs and the innocent party opts to ‘accept’ the breach and bring the contract to an end, this is a prospective-only process of termination, which merely discharges both parties from future performance of their obligations under the contract. (Notice in passing that it is very different from the remedy of ‘rescission’ whereby a contract is ‘unravelled ab initio’ because of a defect in the formation of the contract such as misrepresentation, duress or undue influence.) The problem we are concerned with kicks in at this point, once the contract has been discharged by the innocent party. He undoubtedly has a remedy in damages, which will put him into the position he would have been in, had the contract been performed, but what if he has paid the contract price in advance? Instead of claiming
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advance, in this sort of case (where P has made a good bargain). Damages on the ‘expectation’ measure will put him into the position he would have been in had the contract been performed. He would have made a net profit of £100,000 on this contract (£400,000 minus £300,000). In other words, had the contract been performed he would have been £100,000 UP, but, as a result of the breach, he is instead £300,000 DOWN. So the measure of damages will be £400,000. This simple example makes it obvious that, where P has made a good bargain, his damages will exceed the amount of the advance payment. In a sense, that is true by definition, since a good bargain is one where you would have achieved more from performance than the price you paid. So, you get your price back as part of your damages. As should be obvious by now, the prospect of a remedy that allows you simply to get your money back (not as part of an award of damages) is far more significant in a case where the innocent party has made a bad bargain.
Example 2 Suppose the facts of Example 1 were altered slightly, so that the market price of the machine is £250,000 but the contract price is still £300,000 and, once again, has been paid in full in advance by P. Here, it is clear that, if the contract had been performed, P would have ended up £50,000 DOWN (having paid £300,000 for a machine only worth £250,000). So, the expectation measure of damages, designed to put P into the position he would have been in had the contract been performed, will do the same: he is currently £300,000 DOWN so needs to receive £250,000 by way of damages, to ensure that he finishes up £50,000 DOWN.
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It is at this point that a totally different remedy, designed to let P
so as to order the correct proportion of the price to go back. This is not
merely get his full £300,000 back, looks useful and significant. But, can
particularly convincing, since judges have to do this sort of calculation
P opt for such a remedy? The answer, in a nutshell, is that he will only
all the time: just because it will sometimes be difficult (how do you
be able to do so where the breach involves a total failure of
value three quarters of a house, if the builder has breached before
consideration.
finishing?) doesn’t necessarily justify a blanket rule in all cases, even like our Example 3 where such difficulties do not arise.
Meaning of total failure of consideration It is important to emphasise that the word ‘consideration’ has a slightly different meaning here than in the more familiar context of consideration which makes a contractual promise binding. Most contracts are bilateral, meaning that there are obligations on both sides, such that one party’s promise provides the consideration for the other’s promise and vice versa. In contrast, in the ‘failure of consideration’ context, we don’t mean that the promise has in some way failed: we mean instead that the performance of the promise has failed. Viscount Simon made this clear in Fibrosa Spolka Akcyjna v Fairburn Lawson Combe Barbour [1943] AC 32, stating: ... in the law relating to the formation of contract, the promise to do a thing may often be the consideration, but, when one is considering the law of failure of consideration and the quasi-contractual right to recover the money on that ground, it is generally speaking, not the promise which is referred to as the consideration but the performance of the promise.
Much more recently, Lord Goff (in a slightly different context) has explained that the test is ‘whether the promisor has performed any part of the contractual duties in respect of which the payment is due’ (Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574). This quotation also brings us to the ‘total’ requirement: this remedy is only available where there the consideration has failed totally, which, to use Lord Goff’s language, rules out any case where any part of the contractual performance has occurred.
The total requirement It is vital to remember this requirement, because (rightly or wrongly) it
Over the years, the courts have sometimes managed to get round the seeming injustice of the total failure requirement. One way is that occasionally, where the consideration can easily be apportioned, so that it is possible to say which bit of the price relates to the part has been performed and which to the part that has failed, the courts might be prepared to allow partial recovery of the price. It is as if one apportioned part has failed totally (see the advice of the Privy Council in Goss v Chilcott [1996] 3 WLR 180). This might well provide a solution in our Example 3. A further, and very well known, example of a court evading the total requirement is the case of Rowland v Divall [1923] 2 KB 500, in which the plaintiff had bought a car from the defendant which (unbeknown to either of them) later turned out to be stolen. This came to light four months after the plaintiff bought the car and he was obliged to surrender it to the police. The plaintiff then claimed his money back from the defendant and the Court of Appeal allowed his claim to succeed on the basis that there had been a total failure of consideration, despite the plaintiff having had the use of the car for four months, because what he contracted for was title to the car and he did not get it. As Atkin LJ said: ‘... he paid the money in order that he might get the property and he has not got it.’ Of course, this would mean that he would have been able to get his money back in total even if he had had the car for years and put 20,000 miles on the clock in the meantime. Critics of this case have long argued that it would be a lot more realistic if the law were changed to allow recovery of money on the basis of partial failure of consideration, since this would avoid the need for the artificiality inherent in the reasoning in Rowland v Divall. (Of course, the plaintiff in that case could have brought a perfectly straightforward damages claim against the defendant and it is not at all clear why he pursued the total failure route.)
marks a significant limitation on the availability of this remedy. It is
So, at first glance, it does look as if the total requirement is an
often criticised as being artificial and unnecessary, and over the years
undesirable and unnecessary hindrance, which the courts are doing
judges have found various ways round it, though as we will see, there is
their best to abolish. However, there is a strong counter argument for
a basis on which it might be justifiable.
retaining the total requirement, which links back to our starting point
The requirement at its simplest can be illustrated by modifying our example slightly.
Example 3
that it will generally only be where the plaintiff has made a bad bargain that he will wish to claim his money back rather than the usual claim for expectation damages (which of course put him into the unhappy position he would have been in if his bad, loss making contract had
This time, P orders 300 machines at £1,000 per machine and pays the
been performed). The law of contract generally looks askance at cheeky
full price in advance. D manufactures and delivers the first ten
attempts by plaintiffs to avoid the effect of their bad bargain by claiming
machines and then breaches. The market price of the machines is
a different measure of damages. This is most clearly illustrated in cases
£900.
such as C & P Haulage v Middleton [1983] 3 All ER 94, where the Here, there has not been a total failure and so P cannot opt for
Court of Appeal made clear that, if the defendant can prove that the
the straightforward remedy of asking for his £300,000 back. He is
plaintiff had made a bad bargain, the plaintiff is not free to claim a
confined to his remedy in damages, which (as in Example 2) will be less
reliance measure of damages instead so as to try and undo the effect of
than £300,000.
the losing contract. This is an important policy and one which would
At first glance, this does look indefensible: why should P get his
be rendered meaningless if plaintiffs could claim part of their money
money back in Example 2 but not in Example 3? One reason
back on a partial failure of consideration basis. So this may be the best
sometimes canvassed is that to allow recovery of money on the basis of
justification for the total requirement: it is only where the defendant has
partial failure of consideration will force the judges to engage in
not performed at all that he is prevented (perhaps even estopped?) from
complex problems of valuing and quantifying the work partially done,
relying on the law s normal policy of making it difficult to avoid the
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effect of your bargain, bad or good.
well, alleging a total failure of consideration. For our purposes, what
Faced with this sort of argument, restitution scholars tend to
mattered was that the court decided that there had been no total failure
point out that the failure of consideration remedy is fundamentally
of consideration, since she had enjoyed nine out of 14 pleasant days
different from an award of damages. They say it is a restitutionary
and could not allege that the effect of the disaster was to negate the
remedy designed to prevent the unjust enrichment of defendants and
previous nine days of contractual performance. Moreover, the court
point out that it can only be used when the contract has been
said, there is no possibility of a claim for partial failure of consideration,
terminated, but this does not really meet this argument. The contractual
in English or Australian law. So, this part of the claim was a dud. But,
allocation of risk remains, since it is only the obligations to perform that
the most important point to realise is that, even if there had been a total
have been terminated prospectively. There is no use pretending that the
failure of consideration, the court quite rightly pointed out that she
remedy is not part of the regime which operates on breach of contract.
should not be allowed to get both remedies at once. In order to enjoy
One final example, to show once again the use and indeed the
contractual performance, you need to pay the price for it, so it is
limitations of this remedy, which is taken from a real Australian case of
counting twice if you put a plaintiff into the position they would have
Baltic Shipping Co v Dillon (1993) 176 CLR 344. Here, the plaintiff,
been in if the contract had been performed and yet give them their
Mrs Dillon, went on a cruise on the defendant s ship. It was meant to
money back as well. There is no avoiding the need to see the total
be a 14 day cruise to and from Sydney, but after nine days the ship hit
failure of consideration remedy in its contractual context.
something and sank. Mrs Dillon suffered personal injury and lost her possessions. She sued for damages and wanted her money back as
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Terminological traps for contract students by Janet O’Sullivan, Fellow in Law, Selwyn College, Cambridge One of the most difficult and frustrating features of the law of contract for students is its muddled use of terminology. This last point brings us to the second common usage of the
Introduction Very often, the same term has more than one meaning, or the same concept has more than one name, and no end of confusion is caused when these traps are not spotted. This sort of confusion is not confined to law students, either. Sometimes, commentators and judges use terminology loosely or even incorrectly, which can have a detrimental impact on the substantive development of the law. It is therefore fundamentally important for students about to take an exam in the law of contract to be aware of some of the most dangerous terminological traps, both so that they can avoid falling into them themselves and so that they can understand the source of some of the law’s complexities.
Four terminological traps
word ‘condition’. Sometimes, it means nothing more technical than a general reference to any contractual promise, as where a contract refers to all the promises contained within the contract as ‘terms and conditions’. It is therefore important not to jump to the conclusion that, where the parties have called a particular contractual obligation a ‘condition’, that they automatically meant condition in the first, technical sense of the word: that may not be what they intended at all. This is well illustrated by L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235, where the parties designated a particular, minor term as a ‘condition’, but this did not persuade the majority of the House of Lords that the technical sense of the word condition was intended (even though the contract had been drafted by expert commercial solicitors). A third use of the term ‘condition’ is entirely different, though it
The following are four of the most notorious terminological traps in the
is perhaps closer to the ordinary English usage of the word. This is
law of contract (but this is certainly not an exhaustive list!).
where the parties have made a contract, or a particular obligation within a contract, which will not come into force unless and until
1 Condition The word ‘condition’ has so many different meanings that it is difficult to list them all! However, there are three particularly important uses of the word, each of which should be kept distinct. The first is the name given to certain sorts of contractual promises, the breach of which gives the innocent party the option not just to claim damages but also to bring the contract to an end. These sorts of ‘conditions’ should be contrasted with ‘warranties’ (see point 4, below) and ‘innominate’ or ‘intermediate terms’. Students tend to think that it is common for contractual promises to be conditions in this sense of the word but, in fact, this sort of condition is relatively rare. Most contractual terms are actually innominate terms, meaning that the innocent party only has the right to bring the contract to an end if the effect of the breach is serious or substantial (see the judgment of Diplock LJ in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26), and this should be regarded as the general or default rule. Conditions are very much an exception to this general rule. So, nowadays, a contractual promise tends to be categorised as a condition only where precisely the same term has been categorised as such by previous judicial decision (certain clauses in shipping contracts fall into this category – see, for example, The Mihalis Angelos [1971] 1 QB 164), where statute designates it as a condition (like the term implied by the Sale of Goods Act that goods sold by description
something happens or is done. In other words, the contract or obligation is conditional on the thing happening and will not become binding unless it does. So, the thing which must happen first is the ‘condition’. One of the parties might promise to do that ‘something’, but this is by no means necessary. It might very well be some external fact, which neither party is promising to achieve (like, for example, an agreement to buy or sell goods if it rains tomorrow or, more realistically, if some third party fixes the price of those goods). In either case, the contract is said to be subject to a condition precedent: the parties’ obligations do not come into force unless and until the condition is satisfied. The condition precedent is particularly significant in unilateral contracts. One way of explaining Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 is to say that any obligation on the smoke ball company’s to pay Mrs Carlill £100 was conditional on a certain event – namely, her catching influenza – and thus only became binding on the company once she did. But of course Mrs Carlill made no promise to catch influenza. This shows how important it is to keep this type of condition entirely separate from the first and second use of the word. As one commentator has observed, the difference between the various uses of the word condition ‘is so radical in its consequence that there is no excuse for a nomenclature which fails to recognise the distinction’.
2 Rescission
correspond with their description – see Arcos Ltd v Ronaasen (EA) &
Rescission (and its verb, to ‘rescind’) is also an extremely misleading
Sons Ltd [1933] AC 470), or where the parties themselves intend this
term, because it is used when it should not be used, by judges and
categorisation to apply to the promise.
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commentators alike. The reason for this is historical: it meant one thing at common law and meant something completely different in equity,
3 Restitution
which led inevitably to confusion following the procedural fusion of
Another source of confusion is the use of the term ‘restitution’ in the
law and equity at the end of the 19th century. Students today need not
law of contract. Today, most lawyers who speak of ‘restitution’ mean
worry about the historical background, as long as they use the term in
the body of law concerned with remedies which are calculated by
its correct modern usage.
reference to the defendant’s gain, not the claimant’s loss (in some cases,
Today, rescission means the process by which a contract is
designed to reverse the defendant’s unjust enrichment). This in itself
avoided by the innocent party because its formation was tainted by
contains a lot of potential for terminological muddle, but there is a
misrepresentation (or by one of the other analogous vitiating factors like
more fundamental trap. Older case law often refers to the obligation to
undue influence or duress). In other words, when a voidable contract is
pay ordinary compensatory damages as an obligation to ‘make
avoided, that is rescission. The important feature about this process is
restitution’, in the sense of restoring or making good the claimant’s loss.
that it involves restoring the parties to the pre-contract position (this is
Even if this fundamental pitfall is avoided, contract students run
what avoiding ‘ab initio’ means), so that, if the contract has already
into all sorts of terminological problems trying to understand the
been performed by the time the innocent party avoids it, rescission will
relevance of restitution in the law of contract. The key point to
involve giving back what has been conferred under the contract. This is
remember is that there is an important difference between two sorts of
why rescission is said to be ‘barred’ once it is no longer possible to
restitutionary remedies (academic opinions differ as to which, if any, of
restore the parties to the pre-contract position (maybe because the
these remedies are anything to do with unjust enrichment, but this is
subject matter of the contract has been destroyed, changed, consumed
not the place to join in that debate!). First, there are remedies in
or sold). For a recent example of this problem, have a look at Thomas
situations where the defendant has gained precisely what the claimant
Witter v TBP [1996] 2 All ER 573, where the purchaser of a carpet
has lost. In the contractual context, the main remedy in this first
business wanted to rescind the transaction for misrepresentation, but
category is the action for money had and received because of a total
could not do so because it was impossible to give back the business in
failure of consideration. This remedy might well be appropriate where
the same state as it was in before the contract. The purchaser was
the claimant has terminated the contract for breach and wants his
therefore confined to a claim for damages under the Misrepresentation
advance payment back [see the author’s earlier article at [1999] SLRYB
Act 1967.
50], but it is not exclusive to cases of breach of contact. For example, it
True rescission as just described is very different from the
can also be relevant where there never was a valid or enforceable
termination of a contract by the innocent party for breach (either of a
contract in the first place. Moreover, this remedy is very definitely not
condition, in the first sense of the term, or for a serious breach of an
an action for damages, unlike the second very different category of
innominate term). This process is prospective only: primary contractual
remedies. The second category is the very limited list of cases where
obligations no longer need to be performed, but there is no question of
damages are calculated not by reference to the claimant’s loss but to
restoring the parties to the pre-contract position. For this reason, the
the defendant’s gain. This sort of measure is definitely permitted for
term ‘rescission’ should be avoided when describing termination for
some torts and breaches of fiduciary duties, but the only express
breach of contract. The courts and commentators are guilty of persisting
judicial support for such ‘restitutionary damages’ for breach of contract
with this confusion, sometimes arguing that there is no more suitable
is found in an obiter passage from the Court of Appeal decision in
term to use instead of ‘rescission’, but this is a bit feeble. The verbs ‘to
Attorney General v Blake [1998] 1 All ER 833, which is currently on
discharge’ and ‘to terminate’ the contract do the job nicely.
appeal to the House of Lords. The moral is: don’t fall into the trap of
This is not just a pedantic point: it really matters and, over the years, the inappropriate use of ‘rescission’ to mean ‘termination for breach’ has caused some substantive errors to creep into the law of
making vague references to restitutionary remedies for breach of contract, without being very precise about what you really mean.
contract. For example, it used to be thought, erroneously, that an
4 Warranty
innocent party could not at one and the same time terminate the
Finally, the word ‘warranty’ is much misused by students of the law of
contract for breach and claim damages, because the judges were
contract. Sometimes, it is used to mean those contractual promises the
focussing on genuine rescission and not termination for breach. Of
breach of which does not give the innocent party the option to
course, a claim for true rescission is inconsistent with a claim for
terminate the contract, but merely the right to claim damages. A good
expectation damages, since you cannot at one and the same time avoid
example is the promise broken by the opera singer in the famous case
the contract entirely and claim damages to put you into the position
of Bettini v Gye (1876) 1 QBD 183.
you would have been in if the contract had been performed. But termination for breach is not remotely inconsistent with claiming
In other words, a warranty is sometimes the opposite of a condition in its first sense (see point 1, above).
damages as well, as the House of Lords made crystal clear in Johnson v
However, the word is sometimes used to mean something
Agnew [1980] AC 367. The same confusion was behind the old heresy
rather different. Often, lawyers refer to a ‘warranty’ meaning a
that it was impossible to exclude liability for a fundamental breach of
contractual promise that a state of facts is true, in contrast with the more
contract (on the erroneous basis that rescission for such a breach would
natural sort of contractual promise to do or not to do something in the
undo the contract and would therefore nullify the terms contained in
future. For example, on the sale of a business, the seller might give
the contract), another error that the House of Lords eventually put right
‘warranties’ that there are no ongoing problems with any of the
(this time in Photo Production Ltd v Securicor Transport Ltd [1980] AC
machinery, that the business does not owe any outstanding debts, or
827). So, muddled terminology can have substantive consequences!
that the business premises are in good condition. This sort of warranty
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will probably be a warranty in the first sense of the term as well, but
mere representation that it is true without a promise to that effect. In
there is no reason why, in an appropriate case, it couldn’t be an
either case, if the fact turns out to be false, the innocent party can bring
innominate term or even, if the parties intend it, a condition. Students of
the contract to an end. But the regime for claiming and measuring
the law of contract often find this sort of contractual promise a bit odd,
damages is very different for a contractual warranty and a mere
since the party giving the warranty may well be promising that a state of
misrepresentation. Once again, if you indiscriminately use the word
affairs exists without having any control over, or even means of
‘warranty’ for both concepts, you run a grave risk of applying the wrong
checking whether, it does exist. But this is not odd at all – it is common
law.
in the law of contract for people to assume the risk of something outside their control and for them to be liable for breach of contract without any moral fault on their part at all. Warranties are no different in this
Conclusion
regard from, for example, a promise to supply goods in the future where
There are plenty of other examples of tricky terminology in the law of
the seller is taking a risk that he won’t be able to find a source of those
contract (like ‘waiver’ and ‘repudiation’ to name but two), but the four
goods in time to fulfil his contractual obligation.
considered in detail should be sufficient to make you think twice before
A final source of confusion in this context is the difference
making throwaway references to complex legal jargon. Scientists
between the sort of warranty described in the previous paragraph that a
always tell us that it is important to define our terms with accuracy, and
particular fact is true (that is, a contractual promise that it is true) and a
the same undoubtedly applies to the law of contract.
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Making electronic contracts by Richard Stone, Professor of Law, Inns of Court School of Law One of the first topics encountered by most law students is that of the formation of contracts, and the rules of ‘offer and acceptance’. These rules, developed mainly through 19th century cases continue to govern the way in which the courts decide whether two parties have
Contracting by email
made a binding agreement. Suggestions from time to time that other
Consider the situation where Anna sends an email to Darren offering to
approaches to contract formation might be appropriate in certain
sell him 5,000 widgets for £10,000. Darren receives this email at 10.00
circumstances (for example, Lord Denning in Manchester City Council
am on Tuesday. At 4 pm the same day, he decides to accept Anna’s
v Gibson (1979) and Steyn LJ in Trentham Ltd v Archital Luxfer (1993))
offer and sends her an email to this effect. Anna has left work early, at
have failed to shake the dominance of the orthodoxy. This is despite
3.30 pm, and, although this email would have been available to read
the fact that the concepts of ‘offer and acceptance’ do not fit easily
from 4.05 pm, she does not in fact read it until 9 am on Wednesday
with many everyday transactions (for example, buying a train ticket
morning. In the meantime, at 4.30 pm on Tuesday Darren receives an
from a machine, shopping in a supermarket). Even in the early stages
offer from Mel to buy 3,000 widgets for £9,000, provided he accepts by
of development they were found to be difficult to apply to parties
5.30 pm. Darren will only be able to fulfil this contract if he has a firm
contracting at a distance, for example, by post. This resulted in special
deal with Anna. Can he at this point make a deal with Mel confident that
rules applying to such contracts, so that an acceptance could treated
Anna will be obliged to supply him at the price agreed?
as effective on posting and therefore, unusually, take effect and create
The answer, of course, depends on when Darren’s email
a binding contract before the offeror was aware that this had happened
acceptance to Anna is deemed to take effect. If it takes effect at 4.05 pm
(as in Adams v Lindsell (1818)).
on Tuesday, then Anna is committed, and he can proceed to contract
New technology
with Mel. On the other hand, if it does not take effect until it is actually read by Anna (that is, at 9.30 am on Wednesday), there is always a
Technology has moved on significantly since the introduction of the
chance that Anna could withdraw her offer (if, for example, she has also
Royal Mail, so that there is now a variety of ways in which contracts
been contacted by Mel).
can be made at a distance, including telephone, telex, email and via
Unfortunately, because of the lack of clear authorities, it is very
the world wide web. Although telegrams were treated in the same way
difficult to give Darren a definitive answer. The principle suggested
as the post (Byrne v van Tienhoven (1880)), there is surprisingly little
above is that the acceptance should take effect when it is reasonable to
authority on other means of communication. It is assumed that the
expect it to have been read. On the facts, it might then be argued that,
telephone will always be treated as the same as face to face
because Darren’s email is received by Anna’s computer within normal
communication. Similarly, there is authority in Entores v Miles Far East
office hours, it is reasonable to expect it to have been read immediately,
Corpn (1955) that a telexed acceptance takes effect at the place, and
and that therefore he has a contract at 4.05 pm on Tuesday. On the
therefore presumably the time, of its reception on the offeror’s telex
other hand, it is well known that people often only check their emails at
machine. This was supported by The Brimnes (1974) but, in Brinkibon
intervals. It would be quite reasonable for Anna not to have checked her
Ltd v Stahag Stahl (1982), the House of Lords recognised that,
email until later in the day, or perhaps even until the following morning.
sometimes, there is a delay between the receipt of a telex and its being
On balance, it would perhaps be reasonable for Darren to assume that
read, for example when it is sent out of office hours. As Lord
his email would be read by 5 pm, and that, if he has not heard from
Wiberforce commented:
Anna before then, he is safe to make his contract with Mel. Ironically, if
No universal rule can cover all such cases: they must be
Darren followed what is the obvious practical step of ringing Anna, he
resolved by reference to the intention of the parties, by
will presumably discover that she has left work and so will be put on
sound business practice and in some cases by a
notice that she has not read the email. If, however, the deal with Mel is
judgment where the risks should lie.
of sufficient importance to him, it is probably worth the risk of accepting
This is not particularly helpful, but suggests that the rule should
her offer, and then arguing, if necessary, that the contract with Anna
perhaps be that the communication should take effect at the time
took effect at the latest at 5.00 pm, by which time it would be
when the acceptor could reasonably expect it to have been read.
reasonable for him to expect Anna to have read his email.
What are the implications of all this for those who make contracts by email or by the web? The two situations must be considered separately, and email will be looked at first.
Contracting on the web All this shows the kind of difficulties which can arise with making contracts via email. The potential problems with contracting over the
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world wide web were illustrated by events in September 1999 when
(COM (1999) 427)) was issued by the European Commission in
the Argos Ltd’s online store was found by some delighted potential
September 1999 and accepted by the European Parliament and Council
customers to be offering televisions for £2.99 (see, for example, (1999)
in August 2000. Article 11 provides that Member States should make
The Times, 21 September). When they tried to order them, however,
provision in their law that:
Argos refused to fulfil the contract stating that the price should have
… where a recipient [that is, a customer], in accepting a
been £299.99.
service provider’s [that is, supplier’s] offer, is required to
In order to consider whether Argos were right in arguing that
give his consent through technological means, such as
there was no binding contract, it is helpful to consider the way in which
clicking on an icon, the contract is concluded when the
transactions commonly take place over the web. The following is based
recipient of the service has received from the service
on the procedures to be found on many of the websites dealing in
provider, electronically, an acknowledgment of receipt of
consumer goods, such as books, CDs, videos, computers and other electrical items.
the recipient’s acceptance.
As the Commission has noted, this requirement has no relevance if it is
Suppose that Craig wishes to buy some CDs. He logs on to the
the provider/supplier who is accepting an offer to buy from the
website of Anygood.com, which allows him to browse amongst what is
recipient/customer. As we have seen, it is possible to analyse web
on offer, or to search for particular items. Details and prices are
based consumer transactions so that it is the customer who makes the
displayed. Craig finds a CD which he wants to buy and clicks on an
offer. On the other hand, if a ‘confirmation of order’ screen is used,
icon indicating a ‘shopping basket’ (companies being keen to make e-
then it may be that this is an offer which the customer accepts by
shopping as close to ‘real’ shopping as possible). Having put the CD
clicking on an icon, so that it would fall within the terms of Art 11. If
into the ‘basket’, he then returns to browsing and searching. When he
that is the case, then the normal practice of sending a confirmatory
has put all the items he wants into the shopping-basket, he then clicks
email will become mandatory, and the contract will not become
on another icon which allows him to proceed to the ‘checkout’.
binding until the customer has received this. This rule would therefore
Clearly, at this stage, Craig is entirely free to change his mind about
override the normal rule in English law that a contract is binding once
whether to buy any or all of the items, in the same way that a person in
an acceptance is received.
a supermarket can return items from the basket to the shelves.
What is the significance of all this for the situation involving
At the website’s checkout, Craig is asked to supply credit or
Argos, outlined above? It would seem that Argos would not be regarded
debit card details. If he had been a regular customer, he would have
as making an offer to sell the televisions at the stated price. The
been asked to confirm that the goods should be charged to a card used
customers would have been offering to buy. It is only if Argos
previously. Anygood.com may at this stage indicate that his credit card
responded accepting that offer, or, by displaying a ‘confirmation of
details are not acceptable and the transaction will therefore come to an
order’ screen made a firm offer to sell, that they would be bound. It
end (unless Craig can provide details of an alternative card). Assuming
should be noted that such screens, and confirmatory emails, may well
that this is not the case, then Anygood.com will present Craig with a
be generated automatically, without the need for a decision by any
screen setting out the details of the order and asking him to confirm that
employee that the transaction is acceptable. Suppliers do need,
he wishes to continue. If the answer is yes, then a confirmation of order
therefore, to be careful about what they display on their website.
will appear on the screen. Shortly afterwards, it is likely that Craig will receive an email from Anygood.com confirming the transaction. At what stage in all this is a contract made? There seems little doubt that the display of details of goods on Anygood’s website is an
An additional factor is that a display of a ‘misleading’ price may amount to a criminal offence under s 20 of the Consumer Protection Act 1987. For this reason as well, suppliers need to make sure that information on prices is accurate.
‘invitation to treat’ rather than an ‘offer’, as with the display of goods in a shop (for example, Fisher v Bell (1961)). Similarly, as with a transaction in a supermarket, Craig is probably making an offer to buy when ‘taking’ the ‘shopping basket’ to the ‘checkout’ (as in Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953)). This offer will be accepted by Anygood.com provided that the method of payment is acceptable. The contract is not therefore made at the earliest until Craig’s credit or debit card has been accepted, and Anygood.com has displayed the ‘confirmation of order’ screen. It is possible to argue, however, that the display of this screen is itself an offer to sell, which Craig accepts by pressing the button to continue. This may have significance in the light of a European Directive on this issue. The current version of this Directive on Electronic Commerce
Conclusion The development of new technologies, and new ways of making agreements, continues to throw up challenges for the rules on formation of contracts. Although the concepts of ‘offer’ and ‘acceptance’ are of long standing, they are sufficiently flexible to be adapted to new situations. There is, however, still an undesirable degree of uncertainty surrounding the issue of exactly when contracts made electronically come into being. It is to be hoped that the courts will before too long get a chance to rule definitively on some of these issues, or that Parliament, in giving effect to the requirements of the European Directive on Electronic Commerce, will establish some new rules which will clarify the situation. In the meantime, these matters will remain topics for lively debate in contract tutorials!
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Case notes
uphold the public policy that a wrongdoer should not benefit from his crime. Such an order was not authorised by statute and the common law has no power to sanction confiscation of property without compensation.
by Janet O’Sullivan, Selwyn College, Cambridge
Comment
Damages for breach of contract – restitutionary measure Her Majesty’s Attorney General v Blake [2000] 3 WLR 625, HL
Facts George Blake was employed by the British intelligence service, but betrayed his country and became an agent for the Soviet Union. He was tried and imprisoned for treason, but escaped from prison in 1966 and fled to Moscow, where he wrote his autobiography. The book was published by the English publishers, Jonathan Cape Ltd, and sold well. The Attorney General brought proceedings against Blake and his publisher, with a view to preventing the payment of approximately £90,000 of royalties to Blake. At first instance, the Attorney General based his case on the ground that Blake was in breach of fiduciary duty in writing the autobiography, but this argument was rejected: Blake had once been a fiduciary (owing duties of loyalty) during his employment by the Crown, but such status ended when his employment ended. Nor was Blake in breach of the separate fiduciary duty of confidentiality (which survives the employment relationship), since none of the material contained in the autobiography was confidential by the time it was published. The Court of Appeal agreed that Blake did not owe any relevant fiduciary duties, but allowed the Attorney General’s appeal and granted an injunction against Blake on a different basis. This was that, as a matter of public law, the Attorney General has an inherent jurisdiction to institute civil proceedings, in aid of the criminal law, to uphold the public policy of ensuring that a criminal does not retain profit directly derived from his crime. In passing, the Court of Appeal further observed that the Attorney General might also have been at liberty to seek restitutionary damages for breach of contract (calculated by reference to Blake’s profits from the autobiography), since Blake’s publication was in breach of a provision in his employment contract with the Crown not to divulge official information, which continued to bind Blake after his employment had ceased. Blake appealed to the House of Lords against the ‘public law’ injunction ordered by the Court of Appeal, while the Attorney General cross-appealed, on the ‘private law’ basis suggested by the Court of Appeal, and claimed to be entitled to Blake’s profits from his breach of contract on restitutionary principles.
Held The House of Lords (by a majority) allowed the Attorney General’s private law cross-appeal (thereby dismissing Blake’s appeal), holding that, in exceptional circumstances, restitutionary principles could be invoked to enable one contracting party to recover the profits made by the other party’s breach of contract. This was such an exceptional case, because of the serious nature of Blake’s treachery, so the Attorney General was entitled to an account of all Blake’s outstanding royalties held by Jonathan Cape Ltd. However, their Lordships unanimously decided that the Court of Appeal had been wrong to invoke public law principles and to grant the Attorney General a freezing injunction to
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Before the Court of Appeal’s decision in Blake, there was no authority supporting a restitutionary measure of damages for breach of contract, and plenty affirming categorically that only compensatory damages (in other words, assessed by reference to the claimant’s loss) could be recovered. The closest was the decision in Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798, which some academics regarded as supporting a restitutionary measure. Here, the defendant constructed houses on land adjoining the plaintiff’s land, in breach of a restrictive covenant prohibiting such building. However, the value of the plaintiff’s land was not diminished by the breach. The plaintiff sought an injunction to compel the defendant to demolish the houses, but Brightman J refused this relief on the basis that it would be economically wasteful. He did, however, award damages in lieu of an injunction, assessed at approximately five per cent of the defendant’s profits from the development, which the judge regarded as the amount the parties would have agreed as the price of releasing the covenant. Of course, this amount was (notionally) saved by the defendant and, at the same time, (notionally) lost by the plaintiff, so it is possible to explain the case either in restitutionary or in compensatory terms. But, Brightman J clearly regarded the award as compensatory, as have the majority of courts ever since (see, for example, the judgment of the Court of Appeal in Jaggard v Sawyer [1995] 1 WLR 269). The only judicial supporter of a restitutionary explanation of Wrotham Park was Steyn LJ in the unreserved decision in Surrey County Council v Bredero Homes Ltd [1993] 1 WLR 1361, although he distinguished the case on the facts. Nonetheless, Lord Nicholls (delivering the majority speech in Blake) pinned his decision on Wrotham Park, rather surprisingly regarding it as one which ‘shines, rather as a solitary beacon, showing that in contract as well as tort damages are not always narrowly confined to recoupment of financial loss’. Lord Nicholls was further persuaded that restitutionary damages should exceptionally be available for breach of contract, because such damages are available in tort, for trespass to property (and other analogous instances of interference with property rights). He argued that ‘it is not easy to see why, as between parties to a contract, a violation of a party’s contractual rights should attract a lesser degree of remedy than a violation of his property rights’. One answer is that, unlike tangible property, contractual rights are artificial, legal constructs. If the prevailing legal regime regards contractual rights are carrying an entitlement to protection of expectations only, then it is fallacious to reason that, since they resemble other forms of property, they must necessarily also carry an entitlement to disgorgement of gains (awarded on interference with proprietary rights). Overall, Lord Nicholls concluded: When, exceptionally, a just response to a breach of contract so requires, the court should be able to grant the discretionary remedy of requiring a defendant to account to the plaintiff for the benefits he has received from his breach of contract. In the same way as a plaintiff’s interest in performance of a contract may render it just and equitable for the court to make an order for specific performance or grant an injunction, so the plaintiff’s interest in performance may make it just and equitable that the defendant should retain no benefit from his breach of contract.
C O N T R A C T References of this kind to ‘discretionary’ relief, based on what is ‘just and equitable’ sit uncomfortably in the law of contract (after all, the availability of specific performance is technically discretionary, but in practice it is governed by clear, well established and well known principles). This discomfort is heightened by the fact that Lord Nicholls refused to give any principled guidance on when such exceptional relief will be justified. It will be very difficult for litigants, or their advisors, to predict when such damages will be awarded, with guidance as vague as, ‘No fixed rules can be prescribed’, and ‘The court will have regard to all the circumstances’. The Court of Appeal in Blake did at least attempt to provide some guidance, taking the view that restitutionary damages were only appropriate where the law did not adequately protect the claimant’s expectation on breach (prompting the thought, if that’s the problem, why not tackle the deficiencies in the expectation measure directly?). Two examples were given in the Court of Appeal which might attract restitutionary damages, namely, cases of ‘skimped performance’ and cases where the defendant made his profit by doing precisely what he contracted not to do. These suggestions, made in the Court of Appeal without the benefit of counsel’s argument, were rightly criticised by Lord Nicholls, but at least they represented an attempt to establish principles. In their place, we are left with nothing but judicial discretion to do what is just in an exceptional case. Lord Nicholls paused to consider the effect of this new discretion in practice. In his view, there is nothing to worry about: ‘I see no reason why, in practice, the availability of the remedy of an account of profits need disturb settled expectations in the consumer or commercial world. An account of profits will be appropriate only in exceptional circumstances.’ Lord Hobhouse, in a very convincing dissent, was not so sure. He said: ‘I must also sound a further note of warning that if some more extensive principle of awarding noncompensatory damages for breach of contract is to be introduced into our commercial law the consequences will be very far reaching and disruptive.’ Lord Hobhouse recognised that the examples often cited of breaches of contract which require a restitutionary remedy are, in fact, breaches which would be adequately remedied if a full view of compensatory remedies was adopted. ‘The supposed problem arises from asking the wrong question, not from receiving the wrong answer.’ On the facts of Blake itself, Lord Nicholls was convinced that Blake’s breach of contract was exceptional enough to call for an account of profits to the Crown. The only reasons seem to be the (undisputed) seriousness of his treachery and the fact that Blake’s undertaking ‘if not a fiduciary obligation, was closely akin to a fiduciary obligation’. With respect, reasoning (or rather, assertion) of this kind is slippery and dangerous. An obligation is either fiduciary or it isn’t: being closely akin to one is the same as not being one. Legal concepts, particularly those as significant as fiduciary status, should not have blurred edges; just as it would be entirely unacceptable for a court to give a remedy for something which, though not a breach of contract, a tort or a crime, was closely akin to one. The truth is that a concept was invented to strip a notorious traitor of his profits, solely on the strength of the exceptional facts of the case. This is palm tree justice, not the application of legal principles. The result is even more surprising given the vehemence of their Lordships’ rejection of the Court of Appeal’s public law remedy enabling the Attorney General to obtain an injunction to strip wrongdoers of the profits of their wrongs. It might be thought that a public law remedy of this kind would involve greater safeguards than a private law claim, yet the public law claim was denounced as unacceptably confiscatory and one which offends constitutional principle. Yet, as Steve Hedley has pointed out (in a case note to be published imminently): When the remedy is sought in public law, the court sees immediately that this is an argument for confiscation, which it rightly rejects. But how is private law different?
L AW
How does it get round the ‘essentially punitive nature of the claim’ (Lord Hobhouse)? How is the Lords’ ruling not itself an arbitrary act of confiscation? We are not told.
Construction contract – privity of contract – promisee recovering damages for third party’s losses Alfred McAlpine Construction Limited v Panatown Limited (2000) The Times, 15 August, HL
Facts Panatown contracted with McAlpine, a building company, to build an office and car park on land owned by another company in the same corporate group as Panatown, called UIPL. The transaction was structured this way for legitimate VAT saving purposes. In addition to the building contract with Panatown, McAlpine entered into a ‘Duty of Care Deed’ (the ‘DCD’) with UIPL, under which UIPL, as building owner, acquired a direct remedy against McAlpine in the event of negligence by McAlpine in relation to the building contract. The development was completed, but significant defects came to light and McAlpine conceded that it was in breach of the building contract. Panatown brought proceedings against McAlpine for breach of the building contract, but was met with the defence that, having no proprietary interest in the site, Panatown had suffered no loss. (At no time did UIPL seek to proceed under the DCD.) At first instance and on appeal to the Court of Appeal, Panatown succeeded in recovering substantial damages. Both courts applied the exception established by the House of Lords in St Martins Property Corporation Ltd v Sir Robert McAlpine (heard together with Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd) [1994] 1 AC 85, and by the Court of Appeal in Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68. McAlpine appealed to the House of Lords.
Held By a majority, the House of Lords allowed McAlpine’s appeal. The St Martins exception normally permitted the promisee in a construction contract to recover substantial damages for the benefit of the third party property owner who had suffered the loss (whether the property had been transferred to the third party after the making of the building contract or whether, as here, the property had been owned by the third party throughout), to avoid the ‘legal black hole’ whereby neither the promisee nor the third party could hold the contractor liable. However, the exception (which had been derived from the mercantile shipping case of The Albazero [1977] AC 774) was unnecessary and thus not applicable where a separate contractual arrangement had been made between the contractor and the third party, giving the third party a direct right of action against the contractor. Here, the transaction had been deliberately structured so that the third party, UIPL, had a direct right of action under the DCD against the contractor, McAlpine, and thus there was no reason to depart from the general rule that substantial damages can not be claimed by a promisee who has suffered no loss.
Comment It has been assumed for many years that the principle of privity of contract (whereby a third party cannot enforce a contract to which he was not a party, even if made for his benefit) also meant that a promisee could only recover damages for his own loss, not those of a third party.
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Parliament (in the Contracts (Rights of Third Parties) Act 1999) has recently reformed the doctrine of privity and allowed third parties, in certain circumstances, to sue on their own behalf for breach of contractual provisions intended to benefit them. However, a number of cases remain outside this reform, including cases (such as this one) where the facts arose before the Act came into force, and cases which the Act does not cover anyway (for example, a case where property was transferred to the third party after the building contract was made, so that it could not be said that the parties intended to confer a benefit on the third party). So, it remains vitally important to know whether a promisee can recover damages to cover the third party’s losses, hence the series of recent cases on the issue from the world of construction contracts. In fact, all their Lordships in Panatown seemed to share the sceptism of academic commentators about whether there ever was, as a matter of authority, a general rule that a promisee can only recover for his own losses (see Treitel (1998) 114 LQR 527), but nonetheless concentrated on formulating and delineating the exception to that principle. This was where the difference between the majority and minority views can be seen. In the earlier St Martins case, the majority of the House of Lords fashioned a relatively narrow exception based on an analogy with The Albazero mercantile shipping case. This allowed the promisee to recover for the third party’s losses where it is ‘in the contemplation of the parties that the proprietary interest in the property may be transferred’ from the promisee to a third party, so that ‘an original party to the contract, if such be the intention of them both, is to be treated in law as having entered into the contract for the benefit of’ such a third party. So, on this basis, if it was in the contemplation of the parties to a construction contract that the property would subsequently be transferred (or, a fortiori, where the property was at all times owned by the third party, as in the Darlington case and in Panatown itself), the promisee could sue for the third party’s losses. This narrow exception regarded the loss as being the third party’s, and thus to complete the procedure the court imposed a trust on the promisee to hold the damages for the benefit of the third party. However, Lord Griffiths in St Martins had expressed a more radical basis for his decision, namely, that the promisee himself has suffered a loss, even where he did not own the property, because he has an interest in performance. He has suffered a loss of expectation, because he did not receive the bargain for which he contracted. In Panatown, the majority of the House of Lords approved a slightly altered version of the narrow exception, but expressed grave doubts about Lord Griffiths’ broader ground. The Albazero exception was modified in the sense that it was no longer regarded as being based on the intentions of the parties at the time of contracting or on what was contemplated at that point. Instead, according to Lord Clyde, ‘it is preferable to regard it as a solution imposed by the law and not as arising from the supposed intentions of the parties, who may in reality not have applied their minds to the point’. With respect, this clarification is welcome, since it avoids the artificiality of pretending that, for example, the intra-group transfer at an early stage of the development which took place in St Martins was somehow contemplated by the original contract. However, it is then slightly puzzling that the parties’ intentions assume conclusive significance when the exception is ousted because of the presence of a direct contractual link between contractor and third party. Lord Clyde simply asserted: ‘On the other hand, if they deliberately provide for a remedy for a third party, it can readily be concluded that they have intended to exclude the operation of the solution which would otherwise have been imposed by law.’ Yet, academic commentators have pointed out that the real reason that contractors may now be prepared to offer ‘negligence’ remedies along the lines of the DCD is to give limited protection to subsequent purchasers of property, the equivalent of the remedy once offered by the law of tort under Anns v Merton London
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Borough Council [1978] AC 728, before it was overruled by the House of Lords in Murphy v Brentwood District Council [1991] 1 AC 398. In other words, it is surprising that the contractor’s willingness to offer a limited negligence remedy to the third party should oust the availability of the more generous building contract regime, with its strict contractual obligations. The black hole may be smaller where there is a DCD, but it is still there, swallowing up the contractor’s strict contractual obligations. The broad ground favoured by Lord Griffiths in St Martins divided the House in Panatown significantly. One problem with Lord Griffiths’ dictum is that it was not entirely clear whether he regarded it as essential that the promisee should have spent money to repair the contractor’s defect. His remarks can be interpreted either way. The majority of the House of Lords in Panatown were happy to accept that the promisee would be able to recover if he had incurred or intended to incur the relevant expenditure, even though the promisee was not legally obliged to do so (as where a husband contracts for building work on his wife’s property and then pays to remedy the defects). But only Lords Goff and Millett would go further and permit the promisee to recover substantial damages for breach of contract, even where he had no intention of repairing the property, since he has nonetheless suffered a loss: he did not get the performance for which he contracted (although Lord Goff’s speech suggests that, having recovered such damages, the promisee would then be obliged to use them to put right the defects). The practical difference between the two approaches is that, for the minority, the existence of the DCD is irrelevant since the focus is on the promisee’s own loss of bargain, not the recovery by the promisee of the third party’s losses. Lord Browne-Wilkinson, agreeing with the majority that the appeal should be allowed because of the DCD, was able to reconcile both approaches. He explained: If, as in the present case, the whole contractual scheme was designed, inter alia, to give UIPL and its successors a legal remedy against McAlpine for failure to perform the building contract with due care, I cannot see that Panatown has suffered any damage to its performance interest … the physical and pecuniary damage suffered by UIPL can be redressed by UIPL exercising its own cause of action against McAlpine. Both approaches have potential difficulties. The narrow Albazero ground, in addition to the added twist of the DCD, gives rise to the need for a trust of the damages, as well as the problems of whether the promisee can be compelled to bring proceedings by the third party and of whether promisee’s can sue for the benefit of remote third parties, after several subsequent sales, with whom they have no contact. On the other hand, the broad ground, which regards the loss as the promisee’s own, presents the problem of double jeopardy for the contractor (liability to the third party under the DCD and to the promisee), the problem of promisees who pocket the damages without using them to repair the property, and the issue of whether consequential losses by the third party can be said to fall within the promisee’s performance interest. That is, of course, what makes this long and detailed case so fascinating and well worth reading in full! In conclusion, perhaps the best way to approach the case is to realise that the five Law Lords had different attitudes to the fact that UIPL had not brought proceedings under the DCD (and there is still time for UIPL to do so). For the majority, this was fatal, as it showed that there was no pressing need to give the promisee a remedy. For the minority, it was irrelevant, since the promisee had not got the contractual performance it had bargained for, so why should the availability of the negligence cause of action to the third party make any difference at all?
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Article Corporate and vicarious liability ................................................................................62
Case notes R v Baker and Ward ..................................................................................................64 R v Heath ..................................................................................................................64 R v Rai ........................................................................................................................65 R v Greatrex and Bates ..............................................................................................66 B (A Minor) v Director of Public Prosecutions ..........................................................66 R v Martin ..................................................................................................................67 R v Tabassum..............................................................................................................68 Haystead v DPP ........................................................................................................68 R v Gilmour................................................................................................................69
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Corporate and vicarious liability by Paul Dobson, Visiting Professor of Law at Anglia Polytechnic University and Greenwich University Traditionally, there have been three alternative bases for establishing the criminal liability of an employer or corporate body: (i) vicarious liability; (ii) the delegation principle; (iii) the identification principle. Vicarious liability
the word ‘permitting’ imported a requirement of mens rea and the employer had no knowledge that the brakes were defective. The result
Vicarious liability can attach to an employer, whether a natural person
would have been different if the employer had been charged with ‘using’
or a corporate body. Generally, in criminal law, the acts of the
a vehicle with defective brakes, because that offence was one of strict
employee are the acts of the employer, but the mens rea of the
liability. Of course, if the employer actually has the necessary mens rea,
employee is not that of the employer. Thus, in the case of a crime of
then the employer may be liable, not vicariously, but for the employer’s
strict liability (where no mens rea is required to be proved), it is
own crime. Thus, if the employer has actually ‘permitted’ the prohibited
possible to convict the employer on the basis that the employer is
activity, then the employer is guilty for his own crime of ‘permitting’. The
criminally liable for the actus reus committed by the employee. In
House of Lords has recently held that ‘permitting’ may, depending upon
Griffiths v Studebakers Ltd [1924] 1 KB 102, an employee had given a
its statutory context, have an objective meaning, requiring, not that the
trial run to prospective purchasers and had, contrary to the employer’s
defendant had actual knowledge of the prohibited activity, but that the
orders, carried more than two passengers. The employer was held
defendant ‘failed to take all reasonable steps to prevent’ it. This was its
guilty of ‘using’ on a public road a motor vehicle under a limited trade
meaning in the statutory offence under which the owner of a coach
licence, in contravention of a condition of that licence (namely, that
business was charged with ‘permitting’ his drivers to drive too many
no more than two passengers should be carried).
hours. His failure to check the tachograph charts was prima facie
There are two important limitations to vicarious liability. First,
evidence of his failure to take all reasonable steps to prevent the drivers’
it attaches only where the wording of the statute is apt for vicarious
contraventions: Vehicle Inspectorate v Nuttall [1999] 1 WLR 629, HL.
liability, that is, where the wording is such as to suggest that
This case does not, however, tell us anything about corporate liability,
Parliament intended to impose liability on the employer. Thus, one
since the defendant in that case was a natural person and even with
can say that the employer ‘uses’ a vehicle when it is driven by an
‘permitting’ given a different meaning, a corporate employer can still not
employee in the course of the latter’s employment. Similarly, one can
be guilty of the crime unless the fault element (now according to the
say that the employer ‘sells’ when an employee in the course of his
new definition of ‘permit’) can be attributed to the defendant
employment sells, for example, goods with a misleading trade
corporation.
description attached: Coppen v Moore (No 2) [1898] 2 QB 306. The basis of vicarious criminal liability is the construction of the particular statute. Per Lord Russell of Killowen, in Coppen v Moore (No 2): The question ... comes to be ... whether upon the true construction of the statute ... the master was intended to be made criminally responsible for acts done by his servants in contravention of the Act, where such acts were done ... within the scope or in the course of their employment.
Thus, vicarious liability does not apply where the wording of the offence does not lend itself to this interpretation. For example, an employee may ‘drive’ without due care and attention. The employer is not guilty of this offence; the employer is not ‘driving’. The second limitation is that criminal vicarious liability does not normally extend to a crime which requires proof of mens rea. In James & Son v Smee [1955] 1 QB 78, the employers owned a vehicle with defective brakes and were charged with ‘permitting’ it to be used, contrary to some statutory regulations which made it an offence to ‘use or permit to be used’ a vehicle with defective brakes. The employers’ conviction was quashed since, although their employee had been using the vehicle,
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The delegation principle Sometimes, a statutory offence is intended to cast responsibility upon a particular individual. In that case, the individual cannot sidestep his criminal responsibility, by delegating his functions to someone else. This is true of a number of licensing offences. These offences are often worded something like: ‘If the holder of a justices’ licence ...’ knowingly sells or supplies intoxicating liquor to a person under 18, or to a constable on duty, or in contravention of the terms of the licence, etc. If the licensee puts in a manager, thereby delegating the management of the licensed premises, then the licensee can be convicted of the offence, if it can be proved that the act was done (for example, liquor was sold to someone under 18) and that the manager had the required mens rea. The delegate’s mens rea is attributed to the licensee. The rationale for this exception to the normal rule that one person’s mens rea is not attributable to another person is again one of statutory interpretation, it being the intention of Parliament to cast the responsibility on the licensee (Vane v Yiannopoullos [1965] AC 486; Winson [1969] 1 QB 371). The licensing offences do not apply to corporations, since the licensee will always be a natural person. However, the delegation
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principle is an example of a statute, as a matter of construction,
The more flexible approach has also been used where
imposing criminal liability on the basis of another person’s mens rea
companies have been charged with criminal offences involving a
being attributed to the defendant, who does not himself personally have
breach of duty under the Health and Safety at Work Act 1974. This is
it.
an employer’s duty to conduct its undertaking in such a way as to ensure, so far as reasonably practicable, the health and safety of both
The identification principle This principle is a legal fiction applicable to corporations and is necessary because of the underlying legal fiction that a corporation is a person. The corporation is identified with its directing mind. The classic way it is put is that the corporation’s mens rea is to be found in the minds of those who are ‘the directing mind and will of the company’ (Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705; Tesco v Nattrass [1972] AC 153). A corporation cannot be convicted of an offence requiring proof of mens rea, unless it is established that one or more of the members of the directing mind and will had the necessary mens rea. According to Lord Reid in Tesco v Nattrass, those members are the members of the board of directors and, possibly, the company secretary. A manager of a Tesco supermarket is certainly not senior enough. In the case of a large corporation, it will be difficult – usually impossible – for the prosecution to show that, in relation to activities far removed from the boardroom, any of the board of directors had the relevant mens rea. This means, of course, that, in the case of a large company, it is difficult to convict the company (in respect of the activities of its many employees) of any crime other than one of strict liability (where vicarious liability might apply). There have, however, been several recent cases, which refined this approach and reveal that the prosecution’s task is now a little easier in the case of some statutory offences requiring mens rea.
Recent developments
employees (s 2(1)) and non-employees (s 3(1)). The proper construction of the statute means that it is not sufficient that all reasonable precautions had been taken (by the directing mind and will) at senior management or board level. The company/employer will be guilty unless all reasonable precautions have been taken by it and on its behalf by its servants or agents (R v Gateway Foods [1997] 3 All ER 78).
Corporate manslaughter Recent years have seen a series of dreadful disasters involving many fatalities, including: fire at Kings Cross underground station (1987); Piper Alpha oil rig disaster (1988); capsize of ferry at Zeebrugge (1987); rail crashes at Clapham (1988), Southall (1998), Paddington (1999). In most of these instances, subsequent reports found the corporate body running the operation in question was at fault and meriting criticism. None of these disasters has resulted, however, in a successful prosecution of the operating company for manslaughter. The levelcrossing keeper who fails to close the crossing gates with the result that a road user is run down and killed by a train is guilty of manslaughter by gross negligence (Pittwood (1902) 19 TLR 37). Equally guilty is the assistant bosun whose job is to shut the ferry door but who fails to do so, thereby causing the deaths of those drowned when the ferry sinks. However, to convict the company of manslaughter, it is necessary to show that at least one of the persons who make up ‘the directing mind’ of the company (that is, a director) was grossly negligent in breach of duty. The identification principle, unrefined, still applies to corporate
Tesco v London Borough of Brent [1993] 2 All ER 718 involved the sale
manslaughter. This was all confirmed in the Attorney General’s
of a video film with an ‘18’ classification to a 14 year old child. The
Reference No 2 of 1999 ((2000) The Times, 29 February). The jury had
company was charged with an offence under the Video Recordings Act
acquitted a railway company of manslaughter (at a recent rail crash)
1984 and relied upon a statutory defence that it ‘neither knew nor had
and, on the Attorney General’s reference, the Court of Appeal held that
reasonable grounds to believe that the person concerned’ was under
a non-human defendant cannot be convicted of manslaughter by gross
18. Dismissing this defence, the Divisional Court held that, on the
negligence in the absence of evidence establishing the guilt (of the
correct construction of the statute, the knowledge of the person who
same crime) of a human being with whom it can be identified (that is, a
‘sold’ the video at the checkout was to be attributed to the defendant
director of the company). This rule, now so clearly confirmed, has
company. In Meridian Global Funds Management Limited v Securities
meant that, in practice, it is not possible to secure conviction of a
Commission [1995] 3 All ER 918, two senior fund managers employed
corporation for manslaughter – unless the company is a small one,
by Meridian bought into a New Zealand company thereby giving
perhaps under the sole control of a director who can be shown to have
Meridian a holding of 5% or more of that company’s shares. They did
been grossly negligent (Kite and OLL Ltd (1994, unreported)).
this without the knowledge of Meridian’s board of directors. New
It is generally felt that a conviction for Health and Safety
Zealand law required Meridian to inform the Stock Exchange of a
offences, (see R v Gateway Foods, above) is an insufficient punishment
purchase taking its holding to over 5%. The Privy Council held that the
for corporations in the case of major disasters. In its Report on
knowledge of the two senior fund managers was to be attributed to
Involuntary Manslaughter (No 237) in March 1996, the Law
Meridian. It is, per Lord Hoffman, the proper construction of the statute
Commission therefore recommended the creation of a specific statutory
in each case which will tell us whose mind is to be used for the
offence of ‘corporate killing’ under which a corporation would be guilty
attribution of knowledge or mens rea to the company. If there is no
if:
other guide, then it will be the ‘directing mind and will’ in the Tesco v
(a)
a ‘management failure’ (not necessarily at board level) by the
(b)
that failure constitutes conduct falling far below what can
corporation results in a person’s death; and
Nattrass sense; the identification principle (unrefined) will apply. In Tesco v Brent and in Meridian, however, the proper construction of the statute in question led to the conclusion that the mind of individuals
reasonably be expected of the corporation in the circumstances.
who were not directors, namely the officials making the transaction in
Given that recent developments in corporate liability have bypassed the
question, was to be attributed to the company. The identification
crime of manslaughter, one wonders why the government does not find
principle thus gives way to a more flexible approach as to the
time to introduce the necessary legislation to implement this proposal.
attribution of knowledge or mens rea to the company, an approach which varies from crime to crime and which depends on the proper construction of the statute creating the offence.
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Case notes by Paul Dobson, Visiting Professor of Law at Anglia Polytechnic University and Greenwich University Duress
(3)
This particular exception is not, however, confined to the situation where the defendant has ,with the requisite awareness of the risk of duress, joined a criminal organisation or group. It applies equally where the defendant has engaged in criminal activities, for example, drug dealing, bringing himself into contact with other criminals knowing that if he defaulted he might be subjected to violence or threats of violence to coerce him into committing the type of offence for which he is subsequently tried.
(4)
As to the other limitation, the jury should have been directed that if the prosecution had proved that the accused could have neutralised the threats by seeking the assistance of the police, then the defence was not available.
R v Baker and Ward [1999] 2 Cr App R 335, CA A jury should be given guidance by the judge on the limitations to the defence of duress.
Comment The basic requirements for the defence of duress were not in issue in this particular case, since the it was accepted by both sides that the trial
Facts
judge had directed the jury perfectly satisfactorily on them. Those
The defendants committed a robbery at a superstore where they used
violence (to himself or his family) to coerce him into committing the
an imitation pistol. Pleading duress, they gave evidence that they had
offence with which he is charged and that a man of reasonable firmness
involved themselves in the supply of cannabis and that when they had
would have yielded to those threats and carried out the offence.
failed to pay for one batch, they and their families had been subjected
However, the burden of proof is not on the defendant. He does not
to violence and threats of violence and that they had been instructed to
have to prove those requirements. It is for the prosecution to show
carry out the robbery (using the imitation pistol). The judge gave a
beyond all reasonable doubt that those requirements were not present.
proper and accurate direction as to the ingredients of the defence of
Thus, the defence succeeds if the jury considers that it is reasonably
duress. He also mentioned two limitations to the defence, namely: (i)
possible that the requirements were present. At least it succeeds,
that a defendant must not voluntarily put himself in a position where he
provided neither of the limitations discussed in this case apply. With
is likely to be put under duress; and (ii) if the defendant can, without
these limitations, again, the burden of proof does not rest on the
damage to himself (or his immediate family), avoid the effects of the
defendant. Thus, for the first exception to apply, the prosecution must
duress by escaping from the threats, then he must do so. It was the
prove, beyond all reasonable doubt, that the accused joined a criminal
defendants’ case that the police were not able to provide effective
group or engaged in criminal activities with the requisite knowledge or
protection for the defendants and their families against the men who
foresight. (For a conflicting view as to what must be known or foreseen,
threatened them. After retiring to consider their verdict, the jury
see R v Heath, below.) For the second exception to apply, the
submitted two written questions to the judge. One of these related the
prosecution must prove beyond all reasonable doubt that the accused
first limitation and the other to the second limitation on the defence.
could have neutralised the threats by seeking the assistance of the
The judge in his further directions failed to deal with the second
police. Thus, if the jury are left in doubt as to whether the police could
question at all and on the first referred to the possibility of a defendant
have provided effective protection against the men who had threatened
joining a criminal group being aware that the group might put pressure
the defendants, this issue is decided in favour of the defendant.
requirements are that the defendant was subjected to violence or threats
on him ‘of any kind’. The defendants were convicted and appealed.
Held
R v Heath (1999) The Times, 15 October, CA
The appeals would be allowed, the convictions quashed and a retrial
Someone who engages with a criminals knowing that he thereby puts
ordered for the following reasons:
himself at risk of being subjected to threats, cannot later rely on such
(1)
The jury was entitled to help on the limitations to the defence.
(2)
As to the first limitation, the defence is not available to someone
threats as amounting to duress.
Facts
who was aware, when joining a criminal group, that he might come under pressure in the form of violence or threats of
The defendant was charged with possession of a Class B drug (98 kg of
violence (to him or his immediate family) to try to coerce him
cannabis resin) with intent to supply. His defence was that he was a
into committing criminal offences of the type for which he is
heroin user and had becoming indebted for past supplies, that his
being tried (R v Sharpe [1987] 1 QB 853). For this exception to
creditor had made it clear that in order to clear the debt the defendant
apply and the defence to be unavailable, it is not enough for
must collect a consignment of cannabis and drive it back to Bristol. It
that the defendant was aware that the group might put pressure
had also been made clear to him that he had no choice, and that the
on him ‘of any kind’. He had to be aware of the risk of violence
man, who had a reputation for violence, knew where the defendant’s
or threats of violence to coerce him to commit an offence.
girl friend lived. The defendant conceded that he had been aware that,
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by becoming indebted to a drugs supplier, he was putting himself in a
perhaps even into committing theft, but it never occurred to me that I
position where he was likely to be subjected to such threats. The judge
might be coerced into causing grievous bodily harm’. Also, it has to be
ruled that this meant that the defence of duress was not available to the
pointed out that there is a rather obvious analogy here with the law
defendant who thereupon changed his plea to guilty. The defendant
relating to joint enterprise or secondary participation in a crime. To be
appealed against his conviction and, thus, against the judge’s ruling.
liable for aiding and abetting, an accused does not have to be proved to have foreseen the precise details of the crime which the principal
Held The judge had been correct and the appeal would be dismissed for the following reasons: (1)
One of the limitations to the defence of duress applied, namely, that the defendant could not rely on the defence of duress in respect of violence or threats of violence to which he had known that his criminal activity might subject him.
(2)
For this limitation to apply, it was sufficient that when undertaking his criminal activity the defendant was aware that that would put him in a position where he was likely to be subjected to violence or threats of violence to compel him to commit crimes.
(3)
For this limitation to apply, however, it was not necessary for the defendant to have been aware of what types of crimes the coercion might be aimed at compelling him to commit. It was awareness of the risk of compulsion which mattered. Prior awareness of what criminal activity those exercising compulsion might offer as a possible alternative to violence was irrelevant.
Comment
offender goes on to commit. He does, however, have to have foreseen that type of crime as a possibility or as one of a range of possibilities (DPP v Maxwell [1978] 3 All ER 199). In comparing this with duress, assume that the accused pleads duress and that the basic requirements for that defence are fulfilled – that is, that the accused was subject to threats of personal violence such that they would have overborne the will of an ordinary person and that there was no means of effectively neutralising the coercion by, for example, informing the police. In this situation, the liability of the accused depends upon whether he realised that his activities in dealing with criminals exposed himself to the risk that he would be coerced into committing an offence. Is there much difference between, on the one hand, thus exposing oneself to the risk of being coerced into committing an offence and, on the other voluntarily providing assistance to a criminal in the latter’s criminal activities. In the latter situation, the aider is guilty only if he foresaw as a possibility the type of offence which is later committed. In the former situation the accused is guilty, according to the present case, if he foresaw the possibility of being coerced into committing a crime, however minor that crime may be and however unrelated it may be to the crime he is actually coerced into committing. Compared to the position where an accused voluntarily provides assistance to a criminal to further his criminal activities, that seems harsh. The better stance for
In coming to their last holding, the court considered the requirement
the criminal law is, it is submitted, that stated in Baker and Ward,
stated in R v Baker and Ward (above), that for this limitation on the
namely, that the defence of duress is unavailable where the accused in
defence of duress to apply, the defendant ‘has to be aware of the risk
joining a criminal organisation or gang or in engaging in criminal
that the group might try to coerce him into committing criminal
activities, is aware that by doing so, he is laying himself open to the risk
offences of the type for which he is being tried’ (emphasis added). The
of being coerced into committing the type of crime with which he is
court went on to hold that this statement in R v Baker and Ward had
now charged.
not been, and had not been intended to be, a free standing statement of the law; it was simply a passage related to an error made by the trial
Deception – dishonesty
judge in that case in dealing with a question from the jury. With respect, that is far too dismissive. The statement in Baker and Ward
R v Rai (1999) The Times, 10 November, CA
looks to this commentator more like part of the ratio decidendi of that case, than a mere bit of obiter dicta. True, the statement related to how
Remaining silent and continuing as if nothing has changed, when a
the judge had dealt with a question from the jury. However, the way
statement made earlier has been rendered untrue by virtue of changed
the judge dealt with the jury’s questions was the whole basis of the
circumstances, can amount to deception.
appeal in that case. Clearly, the statement quoted from R v Baker and Ward and the final holding in the present case cannot both be correct. Whether the statement in Baker and Ward or the decision in the present case is to be preferred is, of course, ultimately a policy question – and not an easy one. At first blush, it does not seem a very compelling defence to say ‘I knew that by getting involved with these criminal suppliers of drugs, I was laying myself open to the risk of being coerced into theft, robbery or some other acquisitive crime, but I was not aware that I might be coerced into drug running’. Other variations are, however, possible. It is, for example, quite possible that the accused foresaw himself as liable to be coerced into some offence of dishonesty but not into an offence of violence. An argument that the accused did not foresee the type of crime, that is, one of violence, begins to sound a bit more compelling. It seems even more compelling if put as ‘I knew I was laying myself open to being coerced into some minor crime,
Facts In June 1996, the defendant applied to the local council for a grant in order to provide adaptations and bathroom access in his house for the benefit of his elderly and infirm mother. In March 1997, the council accepted the application and agreed to provide the adaptations. The defendant’s mother died in July 1997. Unaware of this, the council started work in August 1997 and completed it in October 1997. The defendant was charged with dishonestly obtaining building services from the council by deception, contrary to s 1(1) of the Theft Act 1978. Prior to the opening of the prosecution’s case, the defendant informed the judge that he accepted that he had remained silent about his mother’s death until after the work had been completed. The judge ruled that that silence and inactivity could constitute conduct giving rise to a deception within s 15(4) of the Theft Act 1968, and s 1(1) of the
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Theft Act 1978. The defendant changed his plea to guilty and then
act (that is, the blow with an iron bar) which caused the death and that
appealed against his conviction, and hence also against the judge’s
he did not know of the existence of the weapon by which it was
ruling.
caused.
Held
Held
The appeal was dismissed.
(1)
(1)
The defendant’s conduct, viewed as a whole, amounted to a
concerted attack were outside the common purpose was one of
continuing representation that his mother was alive and that it was his intention that she should benefit from the work: DPP v (2)
The question of whether the acts of one participant in a degree.
(2)
If the acts of one party are so fundamentally different from those
Ray [1974] AC 370 applied.
of the others as to be regarded as outside the common purpose,
By sitting doing nothing and allowing the work to be done,
each of the others can be regarded as parties to those acts only
while the council was still thinking that the mother would be benefiting from the work, was a straightforward deception.
if he foresaw such acts. (3)
Applying Powell, English [1998] 1 Cr App R 261, the issue was whether the shod foot was as much a dangerous a weapon as
Comment Section 15(4) of the 1968 Act makes it clear that a statement can be made by conduct. In DPP v Ray, the accused had ordered a meal in a restaurant and later, while still sitting in the restaurant, decided not to pay. He continued to sit at his seat in the restaurant until he saw the waiter was not in the room and then left without paying. His conduct in initially ordering the meal included an implied statement, namely, that he had an intention of paying the bill. The approach of the House of Lords was to hold that:
the iron bar. It was possible that properly directed, the jury would have concluded that it was. However, it was also possible that properly directed the jury would have concluded that it was not and that the use of the iron bar was fundamentally different from the acts foreseen by G and thus that he was thus not to be held liable for B’s act. G’s appeal would therefore be allowed and his conviction quashed.
Comment
his initial statement that he had an intention of paying the bill
The law contains a curious dichotomy. On the one hand, the
was a continuing statement which later became an untrue one;
secondary party is fully liable for acts of the principal offender which he
and
foresaw. The secondary party is even liable for the unforeseen
that his continuing to sit in his seat after changing his mind was
consequences of such acts. That means, for example, that he can be
a continuation of the statement that he intended to pay.
liable for murder where he did not foresee death but foresaw only
He was thus held to be guilty of an offence of obtaining a pecuniary
grievous bodily harm. On the other hand, the secondary party is not
advantage – evading his liability to pay – by deception (under a part of s
liable at all if the acts of the principal offender are fundamentally
16 of the Theft Act 1968 which has since been repealed). The facts of
different from those which the secondary party foresaw. This dates from
DPP v Ray occurred before the enactment of the Theft Act 1978 which
the decision in Anderson and Morris [1966] 2 QB 110 which was
created the offences of evading liability by deception (s 2) and making
approved recently by the House of Lords in Powell, English. The
off without payment (s 3), which offences would be appropriate if the
present case is an example of how this works. Either G was guilty of
facts of that case were to occur again. The present case seems to be a
murder or he was not liable at all for B’s use of the iron bar. He can feel
straightforward example of the approach taken in DPP v Ray. The
mightily relieved therefore that the Court of Appeal took the view that a
defendant’s initial statement that the work was for the benefit of his
jury might, if they had been asked to decide the issue, have decided
mother was a continuing one which became untrue before the services
that use of the iron bar was fundamentally different from, and not
(adaptations to his house) were provided and it was repeated or
merely just as dangerous as, the use of the shod foot. It is hardly
continued by his continuing to do nothing and allowing the work to be
surprising therefore that the court emphasised the importance of the
carried out without informing the council of his mother’s death.
prosecution including in the indictment alternative charges against the
(a)
(b)
alleged secondary party – which should prevent him getting off scot
Joint enterprise
free. Fortunately, in the present case, G had been charged also with affray, to which he had pleaded guilty, though the report does not tell
R v Greatrex and Bates [1999] Cr App R 126, CA A secondary party is not liable for acts of the principal offender which are fundamentally different from those he foresaw.
us what sentence was handed down for that offence.
B (A Minor) v Director of Public Prosecutions [2000] 1 All ER 833, HL
Facts
The offence of indecency (or inciting indecency) with a child under the
G and B were involved, with other youths, in an attack on the victim,
age of 14, is not one of strict liability.
whom they kicked violently. B also used an iron bar and it was from a blow by B with the iron bar that the victim died. The judge directed that
Facts
in the case of each defendant the jury could convict only if they were
A 15 year old boy was charged with having incited a girl under the age
sure that there was a shared intention to cause really serious bodily
of 14 to commit an act of gross indecency with him, contrary to s 1(1)
harm. G appealed on the basis that he neither intended nor foresaw the
of the Indecency with Children Act 1960. The justices made a
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preliminary ruling that a defendant’s honest belief that the girl is over 14
mistaken belief to be held on reasonable grounds, undermined the
is no defence to such a charge. The defendant then changed his plea to
ruling in Tolson. It is now arguable that bigamy is an offence where a
guilty. The Court of Appeal dismissed his appeal against his conviction
defendant is not guilty if he or she believes, whether or not on
and the justices’s ruling.
reasonable grounds, that he or she is not married. Secondly, their Lordships have severely doubted the decision in Prince, with the result
Held The appeal was allowed. For a conviction under the section, the prosecution has to prove the absence of a genuine belief on the part of the accused, which does not have to be on reasonable grounds, that the victim was 14 or over.
Comment This decision is a dramatic development. Their Lordships have refused to follow an approach which had been generally regarded as settled since the decision in Prince (1875) LR 2 CCR 154, where on a charge of abducting a girl under the age of 16 out of the possession and against the will of her parent, it was held to be no defence that the accused mistakenly and reasonably believed the girl to be over 16. Their Lordships’ approach, per Lord Nicholls, was as follows: •
There is a presumption that, where a statutory offence is silent as to mens rea, a requirement of mens rea is to be read into it: Sweet v Parsley [1970] AC 132.
•
The traditional formulation for this mens rea requirement was that a necessary element in the offence is an absence of a belief,
•
•
that it is strongly arguable that the offences (in ss 20 and 6 of the Sexual Offences Act 1956) of abduction and of having sexual intercourse with a girl between 13 and 16, are now offences where the accused is not guilty unless it is proved that he did not believe the girl to be over 16. If correct, this argument would render the ‘young man’s defence’ otiose. Undoubtedly, we need further appeals to determine the position in relation to each of the ‘motley collection of offences’ in the 1956 Act.
Mistake – duress R v Martin [2000] Cr App R 42, CA Where the defendant mistakenly perceived himself to be under duress, or under duress greater than really existed, there is no requirement for there to have been reasonable grounds for the mistake. He is to be judged on the facts as he perceived them to be – whether or not his perception was a reasonable one.
Facts
held on reasonable grounds, in the existence of facts which if
The defendant had carried out two robberies. He claimed that he had
true would make the act innocent: Tolson (1899) 23 QBD 168
been put under duress, consisting of serious threats from two men, to
and per Lord Diplock in Sweet v Parsley.
commit the robberies. Medical evidence was that the defendant was
This traditional approach is inconsistent with later authority
schizoid and more likely than other people to regard things said to him
which holds that a mistake, whether reasonable or not, can be a
as threats and to believe that they would be carried out. The trial judge
defence: Morgan [1976] AC 182; Kimber [1983] 1 WLR 1118;
directed the jury to consider whether the defendant might have been
Williams (Gladstone) [1987] 3 All ER 411; Beckford [1988] AC
driven to do what he did because he reasonably believed and had good
130.
cause to fear that otherwise he or his mother would be killed or
The traditional approach is now modified, omitting any
seriously injured. He was convicted of both robberies and appealed
requirement for the mistake to be made on reasonable grounds.
against those convictions.
•
In principle, an age related ingredient of a statutory offence
•
The presumption in favour of reading in a requirement for mens
stands on no different footing from any other ingredient. rea is rebutted only if the need for a mental element is negatived
Held (1)
self defence is that a person is entitled to use such force as is
by a compellingly clear implication. Such an implication may
reasonable in the circumstances as he honestly believes them to
be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be
be (Beckford v R (1987) 85 Cr App R 378). (2)
The offence in s 1 of the 1960 Act is a serious one carrying a possible heavy sentence and grave social stigma, factors reinforcing rather than rebutting the application of the presumption.
•
•
Accordingly, in duress, the defendant is to be judged on the facts as he believed them to be. Thus, the judge had misdirected
attributed to Parliament when creating the offence. •
Self-defence and duress are analagous. The test to be applied in
the jury. (3)
However, in the light of other evidence at the trial, the conviction was not unsafe and would not be quashed.
The correct interpretation of s 1 of the 1960 Act, is not assisted
Comment
by the contents of the Sexual Offences Act 1956 which contains
It is clear that the Court of Appeal was satisfied that the defendant did
a motley collection of offences displaying no clear or coherent
not make the mistake he claimed to have made – no words had been
pattern.
said to him such as those from which he claimed to discerned threats. It
Thus, the presumption in favour of reading in a requirement of
is clearly correct as a matter of policy that the defendant is to be judged
mens rea applied.
on the facts as he believed them to be, irrespective of whether or not his
This is an excellent principled approach to determining criminal
belief was reasonable. That is not only in line with the law on self
liability. However, in the course of holding these offences of gross
defence as acknowledged in the present case, but is in line with the
indecency not to be ones of strict liability, their Lordships have done
current judicial approach to mistakes generally in criminal law. In
two other things. First, they have, by removing the requirement for a
general, there is no need for a mistake to have been a reasonable one:
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see the line of cases holding that a mistake, whether reasonable or not, can be a defence: Morgan [1976] AC 182 (rape); Kimber [1983] 1 WLR
Held
1118 (assault); Williams (Gladstone) [1987] 3 All ER 411 (assault);
The appeal was dismissed. The complainants were consenting to being
Beckford [1988] AC 130 (self-defence); B v DPP (2000) (indecency with
touched for medical purposes and not for any other reason. They
child under 14). The dicta in Graham (1982), approved by the House of
consented to the nature of the act, but not its quality. There was no true
Lords in Howe (1987), stating that in duress any mistake has to be made
consent.
on reasonable grounds, are now clearly wrong. There is one strange curiosity in the present decision. It is that it purported to be following
Comment
and applying the decision in Cairns [1999] 2 Cr App R 137. Cairns did
It is difficult to follow this decision. Consenting to sexual intercourse in
not, however, decide the point decided by the present case. All that
the belief that it is a medical operation, involves being mistaken as to
Cairns decided was that if the defendant relied upon his mistake that he
the nature and quality of the act, and thus is no defence. Consenting to
was under threats amounting to duress, there was no need for those
sexual intercourse knowing exactly the nature and quality of the
threats actually to have existed.
activity, but being mistaken as to who is the partner is no defence.
Even though the defendant’s mistake that he was under duress
However, where the person giving the consent is mistaken neither
does not have to be on reasonable grounds, it will not amount to a
about the nature and quality of the activity nor about the identity of the
defence of duress unless (a) it was a mistake that he (or someone close
defendant, consent is a defence to assault (whether indecent or
to him) would be killed or suffer serious injury; and (b) it was such that
otherwise). At least that is the position as it has always been explained
a sober person of reasonable firmness and sharing the age, sex and
until now. Thus, a woman gives a valid consent if she consents to
other relevant characteristics of the defendant would have succumbed
sexual intercourse knowing the nature and quality of that activity and
to the perceived threats.
knowing also the identity of the man. Her consent is a defence to rape
Although there is now a (welcome) general approach spreading
even if she is ignorant or mistaken about some characteristic of the man
through the criminal law whereby the defendant is to be judged on the
– for example, if he has deceived her into believing that he is very rich
facts as he perceived them to be (even though his perception was
or is single. The fact that she would not have consented had she known
unreasonably mistaken), there still remains one important qualification
him to be poor or married, is irrelevant. The present case, however,
to that general approach. This is that the accused cannot rely upon a
suggests that in some circumstances a mistake about a characteristic of
drunken mistake, other than where both (i) the accused is charged with
the defendant will be relevant. Such a mistake can apparently mean
an offence of specific intent; and (ii) his mistake caused him to lack the
that the consenting party is mistaken about the ‘quality’ of the act in
specific intent for the offence charged. It follows, however, that the
question. This case decides, apparently, that a mistake as to whether the
defendant cannot rely upon a drunken mistake (that he is under attack)
defendant is medically qualified may affect the quality of the act, even
to found a defence of self-defence (O’Grady [1987] QB 995) – and that
where the act is not part of, and does not purport to be part of, any
is so even if the charge is one of specific intent (say, murder) (O’Connor
medical diagnosis or treatment. It also decides that there is a difference
[1991] Crim LR 135).
between the ‘nature’ and the ‘quality’ of the act. Apparently, the
Defence of consent
women in this case knew the nature of the act, but did not consent to its quality. Its ‘quality’ in this case appears to have been determined by whether the defendant was medically qualified. Unless there is some
R v Tabassum (2000) The Times, 26 May, CA Consent (to what would otherwise be a crime) is not nullified by the victim’s mistake unless that mistake is either (a) a mistake as to the identity of the defendant; or (b) is a mistake as to the nature or quality of the act to which the consent is given.
Facts The defendant, who had no medical qualifications, asked several
fact in the present case which is not revealed in the report in The Times, it is difficult to see any distinction between it and Richardson [1999] QB 444. In Richardson, a dentist who was disqualified carried out dental treatment on patients who were unaware that she was disqualified. The Court of Appeal in that case drew no distinction between the ‘nature’ and the ‘quality’ of an act and held that the mistake on the part of the patients did not vitiate the patients’ consent.
Battery – direct application of force
women, including the three complainants, to take part in a breast cancer survey he was carrying out in order to prepare a software
Haystead v DPP (2000) The Times, 2 July, DC
database to sell to doctors. The three consented to the defendant showing them how to carry out a breast self-examination, which
An act which causes an intermediary involuntarily to do an act resulting
involved removing their bras and allowing the defendant to feel their
in the application of force to the victim is the actus reus of a battery on
breasts. There was no evidence of a sexual motive. The complainants
the victim.
would not have consented if they had known the defendant had no medical qualifications. The defendant was convicted of indecent assault
Facts
on each of the three complainants. He appealed arguing that the
The defendant punched a mother who was holding her child. The
complainants had known exactly what they were consenting to and
result was that the mother dropped the child who hit his head on the
that the fact that the defendant was not medically qualified did not
floor. The defendant was convicted by magistrates of recklessly
change the nature and quality of the act to which they had consented.
assaulting the child. The defendant appealed, arguing that there had been no direct application of force by him on the child.
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Held
Comment
The defendant had had direct physical contact with the child, through a
The act carried out by the principal offender was exactly that which
medium controlled by his actions. The case was no different from
was foreseen by the accessory. Where the act committed by the
where a defendant used a weapon as the medium. The appeal would
principal offender departs from the contemplated joint enterprise and is
be dismissed.
a more serious and different kind of act, outside the contemplation of the accessory, then the accessory is not liable at all for it (Anderson and
Comment A battery is a form of assault. A battery requires a direct application of force. However, there can be a direct application of force in circumstances where it is caused via an intermediate medium, for example where the defendant sets his dog on the victim, or uses an inanimate weapon (say a brick) to apply force. In Scott v Shepherd (1773) 3 Wils 403, the famous squib case, where a lighted squib was lobbed into a crowded market place, the intermediaries were people near whom the squib had landed and who threw it away before it eventually blew up injuring the victim. The present case was no different from that one, as the court in this case held.
Accessory – extent of liability
Morris [1966] 2 QB 110 as approved in Powell [1999] 1 AC 1). Thus, compare the present case with R v Greatrex and Bates [1999] Cr App R 126, discussed at (2000) 29 SLR 25, where the act of the principal offender arguably went beyond what the accessory contemplated. The accessory can be liable, however, where the principal’s act is no different from that contemplated by the accessory. The accessory will then be liable according to the mens rea of the accessory. In this case, the Court of Appeal (of Northern Ireland) was satisfied that the accessory had the mens rea required for manslaughter. Certainly, the accessory was party to an unlawful act, the crime of arson. The act was certainly one which all sober and reasonable people would have inevitably realised subjected the occupants to some risk of harm (albeit perhaps only of a minor nature). Thus, the ingredients of manslaughter by gross negligence were clearly established. On the findings of fact, the accessory was rightly convicted of manslaughter.
R v Gilmour (2000) The Times, 26 June, CA of Northern Ireland An accessory who is party to the act committed by the principal offender can be convicted of the same offence as the principal offender, or of a greater or lesser offence – depending upon the mens rea of the accessory.
Facts The principal offender threw a petrol bomb into a house with the intention of killing or causing grievous bodily harm. Six people were killed in the ensuing fire. The principal offender was guilty of murder. The accessory was also convicted of the murders. The accessory appealed, arguing that he had not appreciated that the principal offender intended to kill.
Held (1)
On the facts, it could not be said with any certainty that the accessory intended the attack to result in more than a blaze which might do some damage and to put the occupants in fear and cause them to move house. It could not be said that the accessory appreciated that the principal offender intended to inflict grievous bodily harm.
(2)
To be guilty of a crime of specific intent, the accessory must be proved to have foreseen the act of the principal offender and to have realised the principal’s intention (Powell [1999] 1 AC 1).
(3)
Thus, the accessory’s conviction for murder would be quashed.
(4)
Where the act of the principal offender involved no departure by the principal offender from the act foreseen by the accessory, the accessory could be liable for a lesser offence than the principal offender provided the accessory had the mens rea appropriate for that lesser offence.
(5)
A verdict of manslaughter was therefore substituted for each of the accessory’s convictions for murder.
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Articles The Criminal Justice (Mode of Trial) Bill: a recipe for miscarriages of justice? ..........71 The impact of human rights on criminal litigation ....................................................74
Case notes R v Nottingham Magistrates’ Court ex p Davidson ....................................................76 Practice Direction (Crown Court: Trial of Children and Young Persons)....................76 R v Buckland..............................................................................................................77
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The Criminal Justice (Mode of Trial) Bill: a recipe for miscarriages of justice? by Colin Bobb-Semple, Senior Lecturer, Inns of Court School of Law The Criminal Justice (Mode of Trial) Bill was introduced in the House of Lords on 18 November 1999. The Bill provides for a substantial change in the procedure relating to offences triable either way, that is, triable either by magistrates or by judge and jury, and abolishes the individual’s right to elect jury trial. The main provisions of the Bill
Estimated savings?
The Bill provides that the magistrates will make the decision as to
The government estimates that the provisions of the Bill will result in a
where either way cases should be heard, having regard to
reduction of approximately 12,000 Crown Court trials per annum with
representations as to venue from the prosecutor and from the defence,
a corresponding increase in the trials of those cases in the magistrates’
in addition to other considerations. Magistrates are currently required
courts. It is anticipated that there would be some extra costs arising
by s 19(3) of the Magistrates’ Courts Act 1980 (the ‘MCA 1980’) to have
from the new right of appeal to the Crown Court, leaving a resulting net
regard to the nature of the case, the seriousness of the offence, whether
saving of an estimated £105 million. It is submitted that this calculation
the punishment which they would have the power to impose for the
is likely to prove inaccurate, as it does not appear to have taken into
offence on conviction would be adequate, and any other relevant
account:
circumstances. A new s 19(3)(d) of the MCA 1980 provides that
(a)
the further costs of judicial reviews of the magistrates’ and
(b)
the costs of appeals and judicial reviews likely to arise with the
(c)
the costs of appeals and judicial reviews of magistrates’ courts
magistrates must also consider whether the defendant’s livelihood would be substantially diminished as a result of conviction or as a result
Crown Court’s decisions relating to mode of trial;
of the punishment which is likely to be imposed by the court on conviction. A new s 19(3)(e) of the MCA 1980 provides that magistrates
increased volume of work in the magistrates’ courts; and
must consider whether the defendant’s reputation would be seriously
decisions likely to be based on challenges under the Human
damaged as a result of conviction or as a result of the punishment
Rights Act 1998 when it is brought into force on 2 October
which is likely to be imposed by the court on conviction. A new s 19(4)
2000.
of the MCA 1980 provides that, in considering the question of
For details of the Act’s likely effects on criminal trials, see the articles by
reputation, the court may be informed that the defendant has a previous
Professor Andrew Ashworth QC, ‘Sentencing and the Human Rights
conviction, if it is necessary to rebut or explain anything said by the
Act’ (1999) 163 JPN 64 and ‘The Human Rights Act 1998 (2) Art 6 and
defendant, for example, where the defendant raises the issue of
the fairness of trials’ [1999] Crim LR 261.
previous good character. A new s 19(5) of the MCA 1980 provides that
A perusal of the decisions of the Divisional Court (the ‘DC’) on
a magistrate who is informed of a defendant’s previous conviction must
judicial reviews of magistrates’ courts decisions discloses some
not participate in a summary trial, an inquiry into the information or an
alarming instances of bias, breaches of natural justice or procedural
appeal to the Crown Court in respect of the offence. A new s 20(1) of
improprieties, and unlawful or unreasonable decisions.
the MCA 1980 provides that the magistrates’ court must inform the defendant of its decision following consideration of mode of trial, and s 20(2) provides that where the court decides on summary trial, then,
Bias
subject to the outcome of any appeal to the Crown Court, the
The DC has held that where there has been a reasonable suspicion of
defendant must be tried summarily. Section 20(5) of the MCA 1980
bias, judicial review would be granted, for example, where a magistrate
provides that a defendant may appeal to the Crown Court against a
becomes aware of the defendant’s record, indicates that a decision is
decision in favour of summary trial if representations had been made
made before all the evidence is given, associates with the prosecutor or
for Crown Court trial.
expresses a view which is partial to the prosecution. In R v Downham Market Magistrates’ Court ex p Nudd [1989] RTR 169, the DC quashed
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convictions for motoring offences as the chairman of the magistrates
The Times, 16 March, reviewed at [1994] SLRYB 77, the justices
was aware of the defendant’s record, having sentenced him on two
proceeded with trial in the absence of a 16 year old on a charge of
previous occasions. In R v Romsey Justices ex p Gale (1992) 156 JP
burglary of a dwelling house. The defendant arrived late, due to some
567, convictions for obstructing a police officer were quashed by the
confusion about the hearing, but the justices declined his application
DC, as, at the end of the first day of the trial, a member of the bench of
for a rehearing. The DC held that their decisions were unjustified, unfair
justices had typed out a note of what he proposed the bench should say
and unjust in view of the circumstances of the case. In R v Horseferry
at the end of the case if they were to find the case proved. In R v Ely
Road Magistrates’ Court ex p Bilhar Chima [1995] COD 317, the
Justices ex p Burgess (1993) 157 JP 484, the DC quashed a conviction
defendant was of Asian descent, and during his trial for assaulting a
of assault occasioning actual bodily harm and remitted the matter to the
police officer in the execution of his duty the clerk made general
justices for rehearing before a new bench as the prosecutor had
remarks of a racist nature within earshot of the defence solicitor when
travelled with the justices and the clerk in a car to view the scene of the
the defendant and the justices were outside the courtroom. The clerk
alleged offence, and on the return journey, had travelled alone with the
later improperly took it upon himself to make a decision adverse to the
justices. The justices had also refused to allow the defendant to be
defendant’s case. The DC quashed the conviction which followed, as
present though his solicitor was present. In R v Gough [1993] AC 646,
the clerk had improperly taken over the decision making from the
the House of Lords propounded a new test to be applied in cases of
magistrates and as there was a real danger of the alleged bias having
alleged bias. It substituted the real danger of bias test for the reasonable
created injustice.
suspicion test. Lord Goff set out the test as follows: ... the court should ask itself whether there was a real danger of bias on the part of the relevant member of the
Unlawful or unreasonable decisions
tribunal in question, in the sense that he might unfairly
Unlawful or unreasonable decisions will lead to the quashing of
regard (or have unfairly regarded) with favour, or
convictions by the DC, for example. unreasonable refusal by the
disfavour, the case of a party to the issue under
magistrates to state a case for the opinion of the High Court, committal
consideration by him; though in a case concerned with
for trial where there is no admissible evidence of guilt, or commitment
bias on the part of a justices’ clerk, the court should go on
to prison even though the court is made aware that the defendant
to consider whether the clerk has been invited to give the
received no notice of the hearing. In R v Huntingdon Magistrates’ Court
justices advice and, if so, whether it should infer that
ex p Percy [1994] COD 323, the defendant, a protester, was sentenced
there was a real danger of the clerk’s bias having infected
to 14 days’ imprisonment after having been convicted of being a
the views of the justices adversely to the applicant.
trespasser in circumstances where a breach of the peace was likely to
In R v Highgate Justices ex p Riley [1996] RTR 150, the defendant was
occur. The justices refused her application to state a case on the ground
on trial for driving while disqualified and without insurance. The central
that it was frivolous, even after they had been notified that a High Court
issue was whether the defendant had actually been driving the vehicle
judge had granted leave for judicial review. The DC ordered the
or whether he had merely been working on it. During the course of
justices to state the case and to pay the defendant’s costs of her
defence counsel’s cross-examination of the sole prosecution eye
application as their attitude was wrong, and as the application had
witness, a police officer, the chairman of the bench intervened and
been treated without the seriousness which it demanded. In R v
stated that it was not the practice to call police officers liars in that
Bedwellty Justices ex p Williams [1996] 3 WLR 361, reviewed at
court. The DC quashed the conviction and sentence as there was a real
[1996] SLRYB 65, the defendant was committed to the Crown Court for
danger that the chairman was unfairly, although unconsciously,
trial on a charge of conspiracy to pervert the course of justice. No
prejudiced in favour of the police officer and thus against the
admissible evidence of guilt was before the justices, but their decision
defendant, and that there was at least a real possibility that there was
to commit was influenced by written material which was placed before
not a wholly impartial adjudication of the central issue in the case.
the bench and which they considered to be admissible. The House of Lords quashed the committal as there had been no admissible evidence
Breaches of natural justice/procedural improprieties
of guilt before the justices. This case highlights the ‘mental gymnastics’ which magistrates have to perform as they are judges of both law and fact and it is submitted that it would be very difficult for lay justices to
Breaches of natural justice or procedural improprieties which affect the
put out of their minds prejudicial evidence which they rule to be
fairness of the trial will result in the quashing of decisions by the DC, for
inadmissible. In R v Doncaster Justices ex p Hannan (1999) 163 JP 182,
example, failure to allow the defence to put their case, or the clerk
the justices had made a suspended committal order for non-payment of
improperly taking over the decision making function of the justices. In R
a compensation order. After the defendant failed to comply, the justices
v Midhurst Justices ex p Thompson [1974] QB 137, the defendant was
issued a warrant of commitment to prison for 13 days. The warrant was
on trial in a motoring case. After the close of the prosecution case the
not served and was returned by the post office marked ‘address
defendant made a submission of no case to answer. Mistakenly, and
inaccessible’. Even though the court had been aware that the defendant
without hearing the defence case, the chairman of the bench
had not received notification of the hearing, the commitment was
immediately said: ‘There will be a conviction.’ The DC held that there
executed. The DC held that, in the circumstances in which the warrant
was no final adjudication to be quashed as the defendant had not been
of commitment had been issued, the justices had acted perversely and
sentenced and there was no obstacle to a rehearing before a differently
the order was therefore quashed.
constituted bench. In R v Dewsbury Magistrates’ Court ex p K (1994)
Modernising the system and making
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Order Act 1994 and the Crime and Disorder Act 1998 which increase the youth courts’ maximum sentencing powers to 24 months’ secure
The government has stated that it is committed to modernising the
training orders (to be superseded by detention and training orders in
system of justice. It is questionable, however, whether the Bill’s
April 2000). Dr David Thomas QC in his commentary on the decision
provisions will advance the modernisation of the summary justice
in R v Medway Youth Court ex p A [1999] Crim LR 915 has drawn
system. Many of the miscarriages of justice which arise in the
attention to the fact that the disparity in the respective sentencing
magistrates’ courts stem from the fact that magistrates, whether
powers of the youth court and the adult magistrates’ court could lead to
stipendiaries or lay justices, are judges of both fact and law. Jury trials
possible conflicts with the European Convention on Human Rights.
are perceived by many to be fairer as there is a separation of functions –
There is no doubt that Divisional Court judges will be very busy from
the judge decides matters of law and the jury decides matters of fact. It
next October.
is submitted that a separation of functions is essential for the perception of fairness. It cannot be fair, where the liberty of the individual is at stake, that the judge of law and the fact finder should consider together, for example, the admissibility of a confession, and then seek to perform the mental gymnastics of putting the confession out of their minds if they rule that it should be excluded from the evidence. Many of the miscarriages are also due to wrong advice given to the justices by clerks. A major anomaly in the system is that only about one-third of clerks advising justices are professionally qualified and in the majority of provincial courtrooms, the bench is advised by a clerk who is not so qualified. It is submitted that the best way forward for reform of the system of summary justice is that a summary judge should sit to decide matters of law, evidence, procedure and sentencing, with a panel of three lay justices deciding matters of fact only. It is essential that the justices should be representative of the community. Such a system would be fairer than the present one and somewhat closer in nature to jury trial. The criminal law, evidence, procedure and sentencing have become increasingly complex and technical with the incessant flow of legislation in recent years that the time has come for professionally qualified judges to adjudicate in summary cases. There should be some savings, for although there would be the expense of appointing a sufficient number of summary judges to deal with the increased workload, justice would be administered more swiftly and efficiently. Summary judges sitting alone would be able to deal with the caseload in the magistrates’ courts, the vast majority of which would be guilty pleas, in a fraction of the time currently taken by lay justices. Lay justices would only be required to decide on a verdict in a contested trial. There would no longer be the need for lengthy retirements and adjournments, save in the most exceptional cases and professionally qualified clerks would be unnecessary. Lay justices would no longer be required to attend expensive legal training courses, and there should be a reduction in the number of appeals and judicial review applications with professionally qualified judges dealing with the bulk of the caseload. Further savings could also be made by increasing the summary judges’ maximum custodial sentencing powers to two years with the consequent reduction in the number of committals to the Crown Court for sentence. Such an increase in sentencing powers in the magistrates’ courts would seem logical following the implementation of the provisions of the Criminal Justice and Public
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The impact of human rights on criminal litigation by Colin Bobb-Semple, Senior Lecturer, Inns of Court School of Law The Human Rights Act 1998 is set to have an explosive impact on criminal litigation when implemented fully on 2 October 2000. Section 2 of the Act provides that courts and tribunals must consider the
the automatic denial of bail under s 25 of the Criminal Justice and
European jurisprudence in the interpretation of Convention law; s 3
Public Order Act 1994 prior to his trial constituted a violation of Arts
provides that, when interpreting legislation, whenever enacted, courts
5.3 and 5.5 of the Convention both taken alone and in conjunction
and tribunals must read and give effect to it in a way which is
with Art 13. He also claimed that there had been a violation of Art 14
compatible with the Convention rights, as far as possible; and s 6 makes
of the Convention taken in conjunction with Art 5.3. The UK
it unlawful for public authorities, including courts, to act in a way
Government conceded that there had been a violation of Arts 5.3 and
which is incompatible with the Convention unless they are required to
5.5 and the Court accepted the government’s concessions.
do so by statute. Criminal litigation accounts for the majority of applications in cases from England and Wales to the European Court of Human Rights. This article therefore considers some of the recent decisions of the European Court of Human Rights in criminal cases as they give an indication of the European jurisprudence which must be considered by the English courts in accordance with s 2 of the Human Rights Act 1998.
Article 6 (right to fair trial) Most applications in criminal cases are made under Art 6. In T v UK; V v UK [2000] Crim LR 187, ECHR, two 11 year old boys, who were 10 at the date of the offence, were tried and convicted of the murder of Jamie Bulger, a two year old boy. The European Court of Human Rights held by 16:1 that the trial of the two boys in the Crown Court by judge and jury in the full glare of media publicity was in violation of Art 6.
Article 3 (freedom from inhuman or degrading punishment); Art 5 (right to liberty and security)
The Court found that there was no violation of Art 3, but found unanimously that there had been a violation of Art 6.1, after the Home Secretary had increased to 15 years the tariff of eight years set by the trial judge and later increased to 10 years by Lord Taylor, the Chief Justice at the time. The Court found that the Home Secretary was not an
In Curley v United Kingdom (2000) The Times, 5 April, ECHR, the applicant had been convicted of murder in 1979 when he was 17 years old and had been detained during Her Majesty’s pleasure in accordance with s 53(1) of the Children and Young Persons Act 1933. His tariff, that is, the period he was required to serve in custody before being eligible for release on licence, was set at eight years. His case was reviewed by the Parole Board on various occasions, but he was not released until 1997, some 10 years after his tariff period had expired. He complained pursuant to Art 5 that, after expiry of the tariff period, he had not received a speedy review of the lawfulness of his detention by a court, and further, pursuant to Art 3, that his lengthy detention was such as to constitute inhuman or degrading punishment. The European Court of Human Rights held unanimously that there had been a violation of Art 5.4 as the government had failed to make provision for the lawfulness of his continued detention to be reviewed by a court offering the necessary judicial guarantees. The Court also held that the UK had violated Art 5.5 as there was no enforceable right to compensation before the domestic courts for breach of Art 5. The Court found unanimously that there had been no violation of Art 3. The applicant was awarded compensation for the violation of Art 5 in the sum of £1,500 for non-pecuniary loss in addition to costs and expenses. In Caballero v UK (2000) unreported, the applicant alleged that
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independent and impartial tribunal as required by Art 6.1. Following that judgment, Lord Bingham, the Lord Chief Justice, issued Practice Direction (Crown Court: Young Defendants) [2000] 1 WLR 659, to address the criticisms made by the Court of Human Rights. This Practice Direction includes a statement that the trial process should not expose the defendant to avoidable intimidation, humiliation or distress; that all possible steps should be taken to assist the defendant to understand and participate in the proceedings and that regard should be had to the welfare of the young defendant. The Practice Direction goes on to make various practical suggestions for making the trial process less stressful. In Rowe and Davis v UK (2000) The Times, 1 March, ECHR, the European Court of Human Rights held that failure by the prosecution to lay public interest immunity evidence before the trial judge in a murder trial amounted to a violation of the right to a fair trial under Art 6.1. In Condron and Another v UK (2000) The Times, 9 May, ECHR, Mr and Mrs Condron were convicted of drug charges. They maintained their right to silence during police interviews on legal advice that they were not in a fit condition to be interviewed. An adverse inference was drawn at trial pursuant to s 34 of the Criminal Justice and Public Order Act 1994. The Court of Appeal considered the judge’s direction to the jury to be defective but not enough to render the convictions unsafe.
C R I M I N A L The European Court of Human Rights held that the trial judge’s direction to the jury on the issue of Mr and Mrs Condron’s silence was defective, in that it failed to include a direction that if they were satisfied that their silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to crossexamination, they should not draw an adverse inference. The Court concluded unanimously that as a result of the defective direction, Mr and Mrs Condron had been denied a fair trial within the meaning of Art 6.1. The Court ordered the government to pay them a sum of £15,000 in respect of their costs and expenses. In Sander v UK (2000) The Times, 12 May, the European Court of Human Rights held that there was a violation of the right to be tried by an impartial tribunal under Art 6.1 where there had been a complaint from a juror in the trial of an Asian British national that racist comments had been made by a member of the jury. In Magee v UK (2000) The Times, 20 June, the European Court of Human Rights held that detention of the applicant for over 48 hours whilst being interviewed by a rotating team of police officers without access to legal advice was a breach of Art.6 of the Convention. In Averill v UK (2000) The Times, 20 June, it was also held by the Court of Human Rights that it was incompatible with the rights guaranteed by Art.6 of the Convention to deny a detained person access to a solicitor during the first 24 hours of detention.
Article 8 (right to respect for private and family life); Art 13 (right to an effective remedy) In Khan v UK (2000) The Times, 23 May, ECHR, the police had installed a listening device at the home of an individual suspected of dealing in drugs. The individual had conversations with the applicant which were recorded and the recordings indicated that the applicant was implicated in the offences. The applicant unsuccessfully challenged the admissibility of the evidence. The Court of Appeal and the House of Lords dismissed his appeals. The European Court held that the admission, in evidence, of the covertly recorded tapes of the applicant violated his right to privacy as guaranteed by Art 8 of the Convention because, at the material time, English law was silent on rights to privacy and therefore such surveillance was not in accordance with the law. The applicant’s lack of an effective remedy violated Art 13 of the Convention.
Conclusion There is no doubt that, when the Human Rights Act 1998 is fully implemented on 2 October 2000, many areas of criminal procedure, evidence and sentencing are likely to be challenged in the English courts and substantial changes are inevitable in the light of the European jurisprudence which must be considered when interpreting Convention law. Some of the areas which are likely to give rise to challenges are those regarding bail and detention, disclosure, the lack of separation of functions of district judges and magistrates in the magistrates’ courts, the disparity in the respective sentencing powers of the youth and magistrates’ courts (see (2000) 29 SLR 26), and automatic life sentences for a second serious offence.
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Case notes
plea at the plea before venue hearing the justices had adjourned
by Colin Bobb-Semple, Senior Lecturer, Inns of Court School of Law
the Crown Court for sentence was quashed by the Divisional Court as
Legitimate expectation of sentence in the magistrates’ court founded at the plea before venue hearing
sentence for a pre-sentence report and had indicated clearly that all options were to remain open, except for committal for sentence, the later decision by a stipendiary magistrate to commit the defendant to there had been founded in the defendant’s mind a legitimate expectation of sentence within the limited powers of the magistrates’ court.
New arrangements for fairer trial of young defendants Practice Direction (Crown Court: Trial of Children and Young Persons) (2000) The Times, 17 February, Lord Chief Justice’s Court
R v Nottingham Magistrates’ Court ex p Davidson [2000] Crim LR 118, DC
Lord Bingham, CJ issued this Practice Direction setting out the arrangements to be made for the trial of young defendants in the Crown
Facts
Court, to take account of the judgment of the European Court of Human Rights in T v United Kingdom; V v United Kingdom (1999) The
The defendant had given indications of guilty pleas at a plea before
Times, 17 December, in which that court had ruled that there had been
venue hearing in respect of two offences of aggravated vehicle taking.
a violation of Art 6(1) of the European Convention on Human Rights
The justices gave an indication that their powers were sufficient to
with regard to the trial of the two 11 year old boys convicted of
enable them to deal with the matter, and adjourned for a pre-sentence
murdering James Bulger. The Practice Direction states that account
report. When the defendant appeared at the next hearing for sentence,
should be taken of the age, maturity and development of the young
the stipendiary magistrate who was then sitting considered his powers
defendant, that is, a defendant aged under 18 years, to be tried in the
of punishment to be insufficient and committed the defendant to the
Crown Court; that the trial process should not expose that defendant to
Crown Court for sentence in accordance with s 38 of the Magistrates’
avoidable intimidation, humiliation or distress; that all possible steps
Courts Act 1980. The defendant applied for judicial review of the
should be taken to assist that defendant to understand and participate in
magistrate’s decision to commit him for sentence.
the proceedings and that regard should be had to the welfare of such a defendant in accordance with s 44 of the Children and Young Persons
Held
Act 1933. It directs that steps should be taken before the trial to comply
Lord Bingham, CJ delivering the judgment of the court, reaffirmed the
courtroom out of court hours to familiarise himself with the layout; or
principle that, if a court gave to a defendant any indication as to the
enlisting the assistance of the police to avoid exposure of the defendant
sentence which would or would not be thereafter passed on him, in
to intimidation, vilification or abuse, and the court should be ready to
terms which would found a legitimate expectation in the mind of the
make directions regarding publicity or restricting reporting. It also
defendant that any later sentencing court would act in accordance with
directs that further steps should be taken at the trial, for example, that
that indication, the later sentencing court would generally be bound by
the trial should, if practicable, be held in a courtroom in which all the
the indication. The court accordingly quashed the order for committal
participants were on the same or almost the same level; that the young
for sentence.
defendant should be free to sit with relatives, if he wished; explanations
with these principles, for example, a visit by the young defendant to the
of the course of proceedings should be given in terms which the young
Comment It has been well established since R v Gillam (1980) 2 Cr App R (S) 267 that, where the court adjourns for reports and gives an indication which founds in the defendant’s mind a legitimate expectation of a noncustodial sentence, the court is bound by the indication and any custodial sentence will be quashed on appeal. This principle has now
defendant could understand; so far as practicable, the trial should be conducted in language which the defendant could understand; frequent breaks should be provided; robes and wigs should not normally be worn; and the court should be prepared to limit attendance at the trial and to make directions regarding publicity or restricting reporting.
been extended to the legitimate expectation founded in the defendant’s
Comment
mind by any indication given at the plea before venue hearing in the
The Lord Chief Justice has issued this Practice Direction in an effort to
magistrates’ court that the defendant will be sentenced by that court
address the criticisms of the European Court of Human Rights of the
and will not therefore be at risk of being subject to the more extensive
manner in which young defendants are tried in the Crown Court. The
sentencing powers of the Crown Court. Courts therefore have to be
Practice Direction does not, however, mention the importance of
careful to ensure that all options, including committal for sentence, are
ensuring that the judges appointed to try cases of young defendants
kept open when adjourning for sentence after plea before venue
should be specially trained to try those cases. It is submitted that a
hearings. The decision in R v Nottingham Magistrates’ Court ex p
separate division of the Crown Court should be constituted to try such
Davidson was applied in R v Horseferry Road Magistrates’ Court ex p
cases in which judges specially trained in juvenile justice would decide
Rugless [2000] Crim LR 119, DC, where after an indication of a guilty
on matters of law, evidence, procedure and sentencing, with three lay
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C R I M I N A L justices drawn as far as possible from the defendant’s local community who would decide on verdict only. The defendant could also be given
L I T I G AT I O N
Comment
a right to elect whether the trial would be by judge and jury or by judge
This appears to be one of the first reported cases in which the Court of
and lay justices.
Appeal has found exceptional circumstances for not imposing an automatic life sentence under s 2 of the 1997 Act. In R v Newman
Exceptional circumstances for not imposing an automatic life sentence
(2000) The Times, 3 February, however, a similarly constituted Court of Appeal held that the appellant who had killed his grandmother and had pleaded guilty to manslaughter on the ground of diminished responsibility could not rely on his paranoid psychotic illness as an exceptional circumstance for not imposing an automatic life sentence,
R v Buckland (2000) The Times, 3 February, CA
notwithstanding compelling medical evidence that he should become the subject of a hospital order.
Facts
In R v Kelly [1999] 2 WLR 1100, apparently the first case in which the Court of Appeal considered the effect of s 2 of the 1997 Act,
The defendant had joined a queue at a bank and handed over to the
Lord Bingham CJ stated that automatic life sentences imposed under the
clerk an envelope bearing his name and address on which he had
1997 Act would be quashed in the event that there were exceptional
written a demand for money. The note stated that he had a gun. He
circumstances, and those circumstances justified the court in not
made no attempt to disguise himself and did not produce a gun. The
imposing a life sentence.
defendant sat waiting in the bank while the clerk went to call the
It was held by the Court of Appeal in R v Stephens (2000) 10
police. When the police arrived, he was arrested without a struggle and
February, unreported, that inadequate advice by defence counsel on
a blue plastic imitation handgun was found in his pocket. The trial
plea and the failure to advise on the risk of an automatic life sentence
judge imposed an automatic life sentence in accordance with s 2 of the
amounted to an exceptional circumstance for not imposing an
Crime (Sentences) Act 1997 as the defendant had a number of previous
automatic life sentence. The appellant had been found guilty of
convictions, including one for possession of an imitation firearm with
grievous bodily harm with intent contrary to s 18 of the Offences
intent to resist arrest. He appealed on the basis that the earlier
Against the Person Act 1861. He had previous convictions including
conviction did not constitute a serious offence because it had involved
one for having sexual intercourse with a girl under the age of 13 and an
an imitation firearm, and also that there were exceptional
automatic life sentence was accordingly imposed with a specified
circumstances for not imposing a life sentence.
minimum period of four years to be served. Prior to the commencement of his trial, he had been offered an opportunity by the prosecution to
Held Lord Bingham, CJ, delivering the judgment of the Court of Appeal, confirmed that the earlier offence was a serious offence and stated that the rationale of s 2 of the 1997 Act had to be borne in mind, that is, that there was an assumption that those convicted of two qualifying serious offences presented such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration, and if released, to indefinite recall. The circumstances of this case were, however, exceptional, as no physical injury was or could have been caused, the distress to the staff must have been far from extreme, the defendant had displayed incompetence and lack of aggression and it was safe to conclude that the defendant did not pose a serious and continuing danger to the public to justify the imposition of a life sentence.
plead guilty to a lesser offence of inflicting grievous bodily harm contrary to s 20 of the 1861 Act, but this was turned down. Had he pleaded guilty to the lesser offence, he would not have qualified for an automatic life sentence. The Court of Appeal received a letter from the appellant’s trial counsel who stated that he had not considered the provisions contained in the 1997 Act and the effect that it ultimately had upon S. He further stated that he was not in a position to correctly advise the appellant at any stage of the potential risk of a life sentence if convicted of an offence of grievous bodily harm contrary to s 18 of the 1861 Act. The Court of Appeal held that the failure to give appropriate advice amounted to exceptional circumstances. The life sentence was quashed and a determinate sentence was substituted. Following the decision in R v Kelly, there was some speculation that the Court of Appeal might have continued to apply the exception narrowly. The cases of R v Buckland and R v Stephens indicate, however, that the court is prepared to entertain favourably appeals in cases where the justice of the relevant case demands that an automatic life sentence should not be imposed.
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Article Defences under s 1(3) of the EPA 1970......................................................................80
Case notes Carmichael and Another v National Power plc ........................................................81 Murray v Foyle Meats Ltd ..........................................................................................81 Haddon v Van Den Bergh Foods Ltd ........................................................................82 Glasgow City Council and Others v Marshall and Others ........................................82 Foley v Post Office and HSBC Bank plc (formerly Midland Bank plc) v Madden ....83 Colt Group Ltd v Couchman......................................................................................83
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Defences under s 1(3) of the EPA 1970 by Andrew C Bell, Lecturer in Law at The Nottingham Trent University The case of Glasgow City Council v Marshall highlights one of the problems faced by both courts and students alike when considering the requirement and scope of defences available to an employer under s 1(3) of the Equal Pay Act 1970. There has been an element of confusion in the case law regarding when the employer must be required to justify his pay structures; much
395, and approved by the House of Lords in Strathclyde Regional Council v Wallace [1998] IRLR 146 and recently in Glasgow v
of that confusion may now be removed following the reinforcement of Wallace by Marshall. The relevant legislation (s 1(3) of the Equal Pay Act 1970) states:
Marshall make it clear that the Equal Pay Act exists only to eliminate sex discrimination in wages, and not to implement or impose fairness in pay. On the one hand, this appears perfectly reasonable; few would expect or suggest that the Equal Pay Act should eliminate all discrepancies in pay between all workers. On the other hand, if defences are made too easily available, it will be possible for employers to easily avoid the object of the legislation. To some extent, it may be thought that Wallace and Marshall appear to have taken this a stage further by in effect drawing a line between what is merely ‘unfair’ towards (say) an individual woman and has the effect of restricting her earnings, and what is ‘sex discrimination’ and also has the perhaps equivalent effect of restricting her earnings. In reality, of course, the distinction should always have been apparent – the sex discrimination legislation is not in place to bring about fair treatment, but equal treatment – however, often in the past, the dividing lines have become blurred. The effect of the clarification of this recent case law may perhaps be demonstrated by three brief case study examples: (i) In an equal pay claim, if the higher paid group consist of 60 men and 40 women, and the lower paid group of 40 men and 60 women, it would appear that, prima facie, there may be indirect sex discrimination, the employer would then be
An equality clause shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor: (a) in the case of an equality clause falling within sub-s (2)(a) or (b) above, must be a material difference between the woman’s case and the man’s; and (b) in the case of an equality clause falling within sub-s (2)(c) above, may be such a material difference. As will be noticed, statute states that the material factor in the case of claims brought under the heads of ‘like work’ or ‘work rated as equivalent’ must be a material difference, and, in claims under ‘work of equal value’, the factor may be such a difference, however, in practical terms such distinction has not generally troubled the courts. Students may be forgiven for misunderstanding the interpretation of the legislation, especially if relying on some of the earlier case law. It may appear that if a woman is able to name as a
comparator a man doing like work (work which is the same or broadly similar to the work being undertaken by the woman), work rated under a job evaluation scheme as equivalent, or work of equal value, but being paid more for that work than the woman, then not only would it seem that prima facie the woman should have a sustainable case, but also that the employer may have difficulty supporting a successful defence; after all, the purpose of both national and EU legislation in this area is to achieve equality in pay between men and women. However,
required to both put forward and justify reasons, other than those based on sex, for the pay differentials. Failure on the part of the employer to do so satisfactorily would result in a finding (ii)
of sex discrimination within the pay structure. If both groups consisted of 50 men and 50 women, then, following both Wallace and Marshall, there would be no issue of sex discrimination, merely an issue of fairness – which is not covered by the Equal Pay Act. Thus there would be no
on occasion, things may not be quite so straightforward. What then is the scope of the defence? It has been accepted, relying on such case law as Bilka-Kaufhaus [1986] IRLR 317 ECJ and
requirement for the employer to justify the pay policy or structure. If both groups consisted of 90 men and 10 women, then again
Rainey [1987] IRLR 26, HL, that the burden is on the employer to adduce objectively justified grounds for the difference in pay and that these grounds must not be tainted by sex discrimination – either direct
(iii)
or indirect. In other words, the employer must both explain the reason for the pay differential and justify their use of the differential objectively. Whereas direct sex discrimination will always be unlawful, indirect discrimination may on occasion be justified. The problem is perhaps not so much a question of the
disparities. It is probably not possible to accurately predict the relevant percentages necessary to show indirect discrimination – as Lord Nicholls states in
substance of the defence available, but rather of when it is necessary to justify reasons for any differentials in pay. A line of cases, identified and followed in the EAT case of Tyldesley v TML Plastics Ltd [1996] IRLR
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there would be no issue of sex discrimination, and again, no requirement on the employer to explain or justify the pay
Marshall: ‘Whether a pay disparity has a disparate adverse impact on women is primarily a question of fact.’ Thus, the question is one for the tribunal to decide and subject to the dicta in Edwards v Bairstow [1956] AC 14 their decision may not be open to interference from an appellate court.
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‘reasonableness’ has unfortunately seemingly been unsuccessful. (2)
Although there was no doubt that the question of employee status remains mainly a question of fact for the tribunal to find,
by Andrew C Bell, Lecturer in Law at The Nottingham Trent University
rather than a question of law with which an appellate court may interfere, their Lordships have apparently restricted the use of the exception, in such cases as Davies v Presbyterian Church of Wales [1986] IRLR 194, HL, when the issue of employee status may become a matter solely of law in those cases where the question depends exclusively on the interpretation of a
Carmichael and Another v National Power plc, 18 November 1999, HL
document. (3)
It is clear that Carmichael is concerned with the issue of a ‘global’ or ‘umbrella’ contract, and not with the issue of
The employment status of casual workers is, in many cases, still
whether Mrs Carmichael was an employee during the actual
unresolved. In such cases, appellate courts will be very reluctant either
hours that she was carrying out her duties.
to interfere with a tribunal decision or to find the existence of a ‘global’ contract of employment.
Facts Mrs Carmichael and Mrs Leese worked at Blythe Power stations as guides, showing around groups of visitors, on a part time basis from 1989. Their letter appointing them as guides referred to their
Murray v Foyle Meats Ltd [1999] IRLR 562, HL The correct method of interpreting s 139 of the Employment Rights Act 1996 is to simply use the words of the statute, not to apply the so called ‘function’ or ‘contract’ tests.
‘employment’ on a ‘casual as required’ basis. Their salary was paid by
Facts
credit transfer, after deduction of income tax and national insurance
Mr Murray was employed as a meat plant operative, a general
contributions. They were issued with company uniforms and, when
description which covered work in various parts of the respondent’s
necessary, a company vehicle. Their hourly rate was governed by
factory; although Mr Murray had worked almost exclusively in the
collective agreement, and when National Power was floated on the
slaughter hall. Following a down turn in the employer’s business, it was
stock market they were permitted – along with all employees – to apply
decided to reorganise the slaughter hall, which resulted in a number of
for shares. However, they were not paid sick or holiday pay, nor were
redundancies being necessary. Criteria and procedure for redundancy
they included in a company pension scheme.
selection were agreed with the trade union, and, amongst others, Mr
In 1995, they complained to an Employment Tribunal that they
Murray was made redundant.
had not been issued with a statement of terms and conditions as
He applied to an Employment Tribunal claiming unfair
required by (what is now) s 1 of the Employment Rights Act 1996. Both
dismissal on the grounds that the selection procedure was unfair. Mr
the tribunal and the EAT found that they were not employees, as the
Murray contended that, since he may be required under his contract to
requirement of mutuality of obligation was missing from the
work anywhere within the employers business as a ‘meat plant
relationship between National Power and themselves.
operative’ – not merely within the slaughter hall – it was thus unfair to
However, the Court of Appeal, by a majority, allowed their
select for redundancy only from amongst those working in the slaughter
appeal, holding (i) that, in this case, as a matter of law, a contract of
hall. The employer submitted that the dismissals were wholly
employment did exist; and (ii) that the test for mutuality of obligation
attributable to the fact that the requirements of the business for
should include an element of reasonableness – was the employer
employees to carry out work of a particular kind, that of work in the
obliged to offer the worker a reasonable amount of work available, and
slaughter hall, had diminished, and thus fell within the definition of s
was the worker obliged to accept a reasonable amount of the work
139 of the Employment Rights Act 1996 (in fact, the case concerned
offered.
s 11(2)(b) of the Contracts of Employment and Redundancy Payments
Held The House of Lords allowed the appeal of National Power Plc on the
Act (Northern Ireland) 1965, but the definition of ‘redundancy’ is identical in both Acts).
grounds that the documentary evidence of the relationship between the
Held
workers and the company did not in itself amount to a contract, and
In dismissing the appeal by Mr Murray, the House of Lords stated that
thus its interpretation was not solely a matter of law with which an
the ‘contract’ test, which requires the court to consider the work which
appellate court may involve itself. Further, even if the documentation
the applicant could have been required to do under his contract, and
had amounted to a contract, the House of Lords would not have held
the ‘function’ test, which requires consideration only of the work
that the contract was a contract of employment.
actually done by the applicant, both missed the point. The correct
Comment The case raises three important issues: (1)
It appears that the harshness of the test of mutuality of obligation as applied in O’Kelly v Trust House Forte plc [1983] IRLR 369,
approach was to consider the words of the statute, and in particular the word ‘attributable’. Consequently, if the dismissal may be said to be attributable to a diminution in the employer’s need for workers, then that dismissal may well be for the reason of redundancy.
CA, remains. The attempt by the Court of Appeal in Carmichael
Comment
to mollify the test by introducing a requirement of
The House of Lords confirm that the approach taken in Safeway Stores
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plc v Burrell [1997] IRLR 200 is to be followed, and both the ‘contract’
The case considers the availability and scope of the defence open to an
test and the ‘function’ test are themselves redundant. One consequence
employer under s1(3) of the Equal Pay Act 1970.
of this is that the principle of ‘bumped’ redundancies is again good law – a worker may find himself redundant even though his job is still in existence and filled by another worker whose own job has disappeared. You may recall that this ‘bumping’ was doubted by the EAT in Church v W Lancs NHS Trust [1998] IRLR 492, and, although not specifically referred to by the House of Lords in Murray, it is now clear that Church may no longer be relied upon.
Facts The applicants in the case were seven female and one male instructors working in special schools in Scotland. Teachers working in those schools were paid much more than the instructors. The female applicants named a male teacher as comparator, the male applicant named a female teacher. Two fundamental issues were not disputed before the House of
Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672, EAT
Lords: (a) that the teachers have higher qualifications than the instructors; and (b) that the applicants and their comparators performed
Mr Justice Morison, in one of his final cases as president of the EAT,
either the same or broadly similar work. Thus, prima facie cases had
doubts the use of the ‘band of reasonable responses’ test in assessing
been made out on the grounds of ‘like work’ under s 1 of the Equal Pay
whether a dismissal is unfair.
Act by all of the applicants. The issue before their Lordships was regarding the availability and operation to the respondents of a defence
Facts Mr Haddon was due to receive a good service award from his employer on completion of 15 years’ service. The award ceremony was to take place during Mr Haddon’s shift, but his manager had made it clear that he was expected to return to work after the award and complete his shift. At the award ceremony, Mr Haddon was offered and accepted alcoholic drink, and decided not to return to work after the ceremony. Although it was admitted that Mr Haddon’s absence had no effect on the productivity of the shift, Mr Haddon was dismissed on his return to work the following day for his failure to obey a lawful instruction.
under s 1(3) of the Act. The onus was on the respondent employers to establish a s 1(3) defence which they did by arguing that pay differences were the result of different collective bargaining structures, and by submitting statistical evidence showing that the structures did not discriminate on the grounds of sex – over 95% of both the instructors and the teachers were women. The tribunal held that a mere historical factor and an absence of sex discrimination was not sufficient to found the defence; what was required was a positive good and sufficient reason for the variation in pay.
Held Dismissing the appeal, the House of Lords took a purposive approach
Held Allowing Mr Haddon’s appeal, the EAT stated that the tribunal had been wrong to apply the test of ‘band of reasonable responses’ when seeking to determine the fairness of the employer’s actions. The EAT pointed out that the test was in fact a test of perversity, in that it required
to the Act and relied on the earlier House of Lords judgment in Strathclyde Regional Council v Wallace. In his leading opinion, Lord Nicholls of Birkenhead stated: I can well understand that an instructor in a special school, whether a woman or a man, may feel aggrieved that a teacher in the same school is being paid more for doing the same
a tribunal to decide not whether the actions of the employer were fair,
or broadly similar work. I have more difficulty in understanding how, in
but whether the actions of the employer were so unfair that no
the absence of sex discrimination, this perceived unfairness is said to be
reasonable employer would have taken them.
caught and cured by a statute whose object, according to its preamble,
The correct approach, according to the EAT, is to apply the
is to prevent discrimination between men and women as regards terms
words of the statute (s 98(4) of the Employment Rights Act 1996) in
and conditions of employment.
deciding whether, in the circumstances of the particular case, the
He went on to lay down the four stages at which an employer must
employer acted reasonably in invoking the sanction of dismissal. Since
satisfy a tribunal in order to succeed in the s 1(3) defence. First, that the
the statute requires reference to equity in reaching this decision, it is
explanation for the pay variance must be genuine. Secondly, as a
right that the case should also be considered from the employee’s
question of causation, that the less favourable treatment is due to that
perspective, and not solely from the employer’s.
reason. Thirdly, that the reason is not the difference of sex, whether amounting to either direct or indirect sex discrimination. Fourthly, that
Comment
the factor relied upon is (or in the case of a s 1(3)(b) claim – since the
Many commentators have thought that the test of a ‘band of reasonable
woman’s case and the man’s case.
wording is different – may be) a material difference between the
responses’ was too harsh, and rarely allowed a tribunal to find in favour
Lord Slynn, agreeing with Lord Nicholls, summarised their
of the employee, except in cases where the employer’s actions were
Lordships views succinctly when he stated: ‘This is plainly in essence a
totally and utterly unreasonable. Strict application of the test in Mr
claim that the pay is not fair; and not a claim that the pay is unequal
Haddon’s case would have confirmed his dismissal as fair – which on
because of discrimination between the sexes. As such, it does not fall
the facts would appear to have been an injustice. However, it remains
within the Equal Pay Act 1970.’
to be seen whether this ‘statutory’ approach by the EAT will be approved by the higher courts in due course.
Comment An understanding of this case will be a considerable help to students in
Glasgow City Council and Others v Marshall and Others (2000) 3 February 82 • STUDENT LAW REVIEW • 2000 YEARBOOK
appreciating the extent and limitations of the Equal Pay Act. It may not be possible, despite some earlier case law to the contrary, to succeed in
E M P L O Y M E N T
L AW
an equal pay claim merely because the applicant is able to chose a
the actions of the employer had fallen within the band of reasonable
comparator of the opposite sex and show that the work undertaken by
responses which a reasonable employer could have taken.
them is the same or broadly similar. The defence open to the employer under s 1(3) need only satisfy the four steps detailed above to be successful. Whereas the attraction of Lord Slynn’s comment, above, will be apparent in a situation such as the instant case, it must, however, be hoped that it does not have the effect of offering employers a way of side stepping the legislation.
Comment Several important issues are raised by this judgment. The confusion caused by Haddon is now apparently resolved. It is most unlikely that the matter will be considered by the House of Lords, so the Court of Appeal judgment in Foley and Madden may be taken as a definitive statement of the law, which confirms the approach of the ‘band of reasonable responses’ test from Iceland Frozen Foods and disapproves
Foley v Post Office; and HSBC Bank plc (formerly Midland Bank plc) v Madden, 31 July 2000, CA, not yet reported
the approach taken in Haddon. It is, however, arguable that much of the reasoning in Haddon is valid – on occasion the test of ‘band of reasonable responses’ is
The issue of the use of the ‘band of reasonable responses’, doubted in
applied as a test of perversity, and as such is all but impossible for the
Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672, and reported in
employee to surmount. It remains to be seen how sympathetic tribunals
this Yearbook and at (2000) 29 SLR 30, has now been considered by
may be towards either the Haddon reasoning or the application of it by
the Court of Appeal.
the EAT in Madden, or, alternatively, whether the orthodox approach of
Facts
the last 20 years will be applied more strictly than before. The three stage approach from Burchell is confirmed as binding
Both cases, which were heard by the Court of Appeal together,
upon tribunals, and in cases of dismissals for conduct apparently forms
concerned unfair dismissal. In Foley, the issue was the entitlement of
part of the ‘band of reasonable responses’ test.
the EAT to substitute its own decision, rather than considering whether
This judgment is to be welcomed for re-establishing a degree of
the tribunal were entitled to hold that, on the basis of the facts of the
certainty into this area of law – EAT decisions over the past months
case, the employer had acted reasonably in treating the reason for the
have been somewhat confusing. There may well, however, be a price
dismissal as a sufficient reason.
to pay: it has been argued that the test of ‘band of reasonable responses’
In Madden, the issue was the approach of the tribunal,
demands a much higher level of unreasonable behaviour than is
supported by the EAT, of, in effect, substituting its own views for those
indicated by statute, Haddon attempted to redress this situation – it
of the employer, rather than deciding whether the employer had acted
failed.
in a way which a reasonable employer could have acted. In Madden, the EAT president, Lindsay J, had attempted to restrict the effect of Haddon by stating that the application of the test of ‘the band of reasonable responses’ – doubted in Haddon as a ‘test of perversity’ – should be applied in conjunction with the words of s 98 of the Employment Rights Act 1996. The effect of this would be to confirm dicta from Iceland Frozen Foods v Jones [1983] ICR 17 as binding, but
Colt Group Ltd v Couchman [2000] ICR 327, EAT The word ‘employer’, when applied in the Disability Discrimination Act 1995, is not necessarily as broad as when applied in either the Sex Discrimination Act 1975 or the Race Relations Act 1976.
to acknowledge the danger expressed in Haddon of the test becoming
Facts
almost impossible for the employee to satisfy. Unfortunately, Lindsay J
The employer was the parent company of a multi-national group of
then went on to suggest that the test or approach from BHS v Burchell
companies, but itself only had seven employees. Ms Couchman was
[1980] ICR 303 related solely to the reason for the dismissal rather than
dismissed and brought an application under the Disability
the reasonableness of the decision – a view which, although
Discrimination Act 1995. As a preliminary issue, the tribunal had to
superficially appealing, subsequent commentators have found to be
decide whether the claim was excluded by s 7 of the Act, as the Act
unsustainable.
applies only to companies with 20 (now 15) or more employees. The
Held The leading judgment was delivered by Mummery LJ, himself a past president of the EAT. In it, he stated that the ‘band or range of reasonable responses’ approach as detailed in Iceland Frozen Foods remained binding, and the disapproval of that approach by Morison J in
tribunal held that Parliament had inserted s 7 into the Act in order to exclude small businesses with little expertise or resources from being unduly hampered or penalised by the provisions of the Act; to treat the parent company of a multi-national group as ‘a small business’ was absurd.
Haddon was ‘an unwarranted departure from binding authority’.
Held
Furthermore, the approach to both the reason for and the
Section 7 of the Disability Discrimination Act 1995 should be given its
reasonableness of the dismissal, as expounded in Burchell remained
natural meaning. To use the number of employees as a basis for
binding.
determining the application of the Act does not give rise to an
Consequently, both appeals would be allowed. In Foley, the EAT had not been entitled to reverse the decision of the tribunal, since the Post Office had established to the satisfaction of the tribunal that the reason for the dismissal was a potentially fair, s 98, reason, and that it had acted reasonably in treating the reason as a sufficient reason. In the case of Madden, the tribunal had erred in law by, in effect, substituting
absurdity, as Parliament would have been aware of the apparent anomalies of holding companies and groups of companies when it chose that method of defining excluded companies.
Comment
its own decision for that of the employer, rather than by asking whether
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Articles Rights of advocacy, human rights, publicly funded law, court delays, and impartial judges..............................................................................................86 Jury trials, the CPR, technology and the legal system, solicitors, barristers, judges, and the criminal justice system ................................................................90 Civil litigation and the CLS, the CPS and the police, advocates’ liability for courtroom negligence, and the Criminal Cases Review Commission........................................................94
Case notes Locabail (UK) Ltd v Bayfield Properties Ltd and Another ..........................................88 Arthur JS Hall & Co v Simons and Other Appeals ....................................................95
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Rights of advocacy, human rights, publicly funded law, court delays, and impartial judges by Dr Gary Slapper, Director of the Law Programme, The Open University Expansions and contractions in advocacy This year will see further changes to the composition of those who act as advocates. Fewer Queen’s Counsel (QCs) will be acting as defence and prosecution advocates in criminal cases and patent agents will be given rights of audience in the civil courts. Both these changes can be set in the context of a governmental concern
The Courts and Legal Services Act 1990 established a framework for the
to sweep away restrictive rules which, it argues, promote inefficient and
granting of rights to conduct litigation and rights of audience. The CIPA
uneconomic conduct of cases.
is the second new authorised body to come into existence under the
The government intends to change the Criminal Legal Aid
1990 Act. The Institute of Legal Executives was the first in April 1998,
Regulations on the use of advocates in the Crown Court. It is proposing
which was successful in its application to be able to grant rights of
to tighten the criteria relating to the assignment of QCs and also to the
audience to its Fellows.
use of more than one advocate. The assignment of QCs and more than
The application will allow CIPA to grant rights to conduct
one advocate in the Crown Court is currently governed by reg 48 of the
litigation and rights of audience to suitably qualified Fellows in
Legal Aid in Criminal and Care Proceedings (General) Regulations
restricted proceedings. The rights include:
1989.
•
the right to conduct litigation in the Chancery Division of the
It is proposed that, before an application to increase or alter the
High Court, including the Patents Court, and in the county
number or seniority of advocates is made to the Crown Court, the case
court, and to conduct appeals from the Patents County Court,
must meet specified criteria designed to ensure it actually warrants the
the county court and the Chancery Division of the High Court,
assignment of a QC or more than one advocate. Government
in respect of any matter relating to the protection of any
departments with responsibility for bringing criminal prosecutions will
invention, design, technical information or trade mark, or as to
also be asked to ensure that a QC or more than one advocate are only
any matter involving passing off;
instructed by the prosecution when necessary. There are nine such departments, including the Crown Prosecution Service, the Department of Environment, Transport and the Regions, the Department of Social Security and the Department of Trade and Industry.
•
the right of audience in hearings in the judge’s room and on preliminary matters ancillary to Intellectual Property litigation.
Announcing the change, the Lord Chancellor, Lord Irvine, said: This will lead to a small but important increase in the
Over the last two years, barristers have already compromised
number of people qualified to appear before the courts.
over legal aid defence work remuneration. They now work for fixed
Patent agents work in a small, highly specialised field and
fees, instead of hourly rates, in 90% of such cases. Rates of pay for such
it is right that the public are given every opportunity to
work have fallen by 15% over the last four years. One significant
draw on the expertise within the profession. The CIPA
danger here is that many able defence lawyers will be alienated from
now joins the Bar Council, The Law Society and the
this vitally important area of advocacy by levels of pay notably lower
Institute of Legal Executives, both as an authorised body
than that which their qualifications could command in other areas of
in its own right and as a fully fledged part of the legal
law.
profession.
While QCs might be getting less criminal court work, patent
It is of great significance that the Lord Chancellor refers to patent agents
agents will be joining the ranks of advocates in the civil courts. The
as part of ‘the legal profession’. This is in line with governmental plans
Chartered Institute of Patent Agents (CIPA) has been designated an
to greatly widen the variety of specialist legal practitioners, and move
‘authorised body’ for the purposes of the Courts and Legal Services Act
beyond the simple solicitor-barrister dichotomy which, during the last
1990. The application for ‘authorised’ status had previously been
century, became so embedded in public consciousness. It is worthy of
approved by the Lord Chancellor and the designated judges under the
note that, in fact, all changes to the structure of the legal profession
Courts and Legal Services Act 1990, and by both Houses of Parliament.
have, over the centuries, been greeted with grave doubt by the old
86 • STUDENT LAW REVIEW • 2000 YEARBOOK
E N G L I S H guard. There was a time when solicitors were not regarded as proper
L E G A L
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have been suspended.
lawyers. The attorney, the forerunner of the solicitor, was originally an
A society recognising and enforcing human rights law is, in this
officer of the court whose task was to help the client in the preparatory
writer’s view, indisputably better for the majority of people than one
stages of a case. Attorneys were not admitted to the Inns of Court.
that does not recognise such rights. Anyone in doubt about that can
The assumption that a specialist practitioner must have qualified
contact Amnesty International and consider the evidence of what
as a barrister or solicitor is coming under sharper public scrutiny.
occurs in some of the world’s more rigorous regimes. Some countries’
Provided that he or she has a good knowledge of court procedure, the
leaders, however, take the view that legal human rights are an
law of evidence and some parts of related law, a highly specialist
impediment to stable society and economic prosperity. Nonetheless,
patents agent would, for many litigants, be just as desirable as their
even in their most positive setting, human rights in themselves are not
court advocate as a qualified barrister. The Bar, naturally, takes a
the universal panacea they are sometimes held out to be.
different view, and argues that in the court environment there is no adequate substitute for a dedicated court advocate.
Legally enforceable human rights exclude any guarantee of social or economic benefits, and many people in ECHR signatory countries end up in such a wretched condition that all notions of legal
Human rights
rights are remote and irrelevant to their lives. For example, several charity organisations now estimate that there are over 200,000 young
The Human Rights Act 1998, due to come into effect this year, is set to
homeless people in the UK. It is eminently possible that none of these
cause major reverberations throughout the English legal system. The
people sleeping on the streets or drifting through society has any valid
recent case of Z and Others v UK (European Court of Human Rights)
legal claim that their human rights, as expressed in the ECHR has been
illustrates several points of legal significance.
violated. Thus, however good they are at improving life for one
On 10 September 1999, the European Commission on Human
segment of the population (albeit perhaps a large segment), they are
Rights in Strasbourg ruled unanimously that the United Kingdom was in
useless at protecting the interests of other sections of the community.
breach of its obligations to protect children from inhuman and
Consider another case, one in which a child suffering from leukaemia
degrading treatment under Art 3 of the Convention. The case arose
was deprived of possibly life saving treatment because the local health
from litigation brought by adults who had been abused while children
authority had calculated that the treatment would not be financially
in the care of social services. The Official Solicitor was first appointed
justified in view of a low success rate for the treatment. Such a decision
in April 1993 as litigation friend for these children. In this capacity, he
deprives a person of the chance of life. Article 2 of the ECHR
brought proceedings in the domestic courts to obtain compensation for
guarantees the right ‘to the legal protection of life’ but there would be
the damage suffered by them. When the children’s claim failed in the
no legal basis for declaring a health authority to have violated Art 2
House of Lords, where it was held that social services departments had
even if treatment was deliberately refused on the basis of cold cost
immunity from claims by children in these circumstances, the Official
benefit calculation.
Solicitor pursued the matter on the children’s behalf to Strasbourg.
In the view of the 19th century legal writer Jeremy Bentham,
The Commission also ruled unanimously that the House of
‘natural’ rights were simple nonsense and ‘natural and impresciptible
Lords’ decision of 29 June 1995 amounted to a breach of the children’s
rights’ (that is, inalienable rights) were rhetorical nonsense. He called
right to pursue a remedy in the civil courts under Art 6. The case will
them ‘nonsense upon stilts’ (see Waldron, J (ed), Nonsense upon Stilts,
now be considered by the European Court of Human Rights. This case
1987, Methuen, p 53). Beneficiaries of human rights law will clearly
was brought under the old rules which required the Commission to give
reject this cynical view but it might well re-surface if ever an expected
a preliminary view before a case went to the full court. From this year,
right is nullified by political fudge.
cases will go direct to the Human Rights court in Strasbourg and the average waiting time of five years and six months it took for a case to come to the court will be reduced to about one-fifth of the time.
New era of publicly funded law
The case also illustrates the way in which major areas of
Over 5,000 contracts have now been awarded to law firms and advice
apparently domestic law can be dramatically affected by human rights
agencies in the first key stage of the reforms which will eventually see
considerations. Another recent example concerns Scotland where the
the almost complete replacement of the legal aid system as it was
1998 Act came into force last year. A sign of struggles ahead was given
previously known.
by a decision from Scotland’s most senior appeal court. The court
From 1 January 2000, only contract holders have been allowed
decided that the legal basis on which 129 Scottish judges have been
to provide publicly funded advice and assistance, and only providers
appointed means that people they have tried might not have received
with proven expertise and experience will be able to hold such
an ‘independent and impartial’ trial.
contracts.
The reason is that the judges, part-time temporary sheriffs, had
The Legal Aid Board has awarded around 5,000 general civil
been appointed by the Lord Advocate, Lord Hardie, who is also
contracts to solicitors’ firms and a further 330 to not-for-profit agencies
Scotland’s chief prosecutor. This seems to violate Art 6 of the European
(such as Citizens’ Advice Bureaux) for civil advice and assistance work
Convention on Human Rights (ECHR) which enshrines the right to a fair
(the old Green Form scheme).
and impartial trial. The judges could be seen as having their impartiality
The government has argued that these contracting arrangements
compromised because the Lord Advocate, a member of Scotland’s
will improve the quality of legal services and achieve two other key
executive, also had the power to offer them a full-time appointment and
objectives: control costs and target priority needs.
a salary of £90,000. Lord Cullen said: ‘I consider that there is a real risk
The contracting system sets a range of controls, such as
that a well informed observer would think that a temporary sheriff
specifying the number of new advice and assistance cases a solicitor
might be influenced by his hopes and fears as to his prospective
can undertake in a year, although a flexible approach is being adopted
advancement.’ Since the decision, all cases involving temporary sheriffs
so the number of cases could be increased if demand warranted. The
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Legal Aid Board will be retaining a reserve fund for such cases. By the same token, the number of cases funded could be reduced if a firm’s
include the following: •
average case costs are exceeding their budget terms. Further contracts
The limited information currently collected suggests there are considerable variations in the time taken locally to progress
for other types of legal assistance – such as legal representation in civil
cases through the magistrates’ courts. For the more serious
cases and criminal legal aid will be phased in until everything covered
cases, it takes between 60 and 100 days on average to
by the current legal aid fund will be subject to contracting from April
complete a case depending on the local area in which the case
2001.
is heard. The Legal Services Commission (LSC) will replace the Legal Aid
Board in April 2000, which is also the date for the launch of the
•
source of data on the reasons for adjournments.
establish priorities (in many respects locally set) for publicly funded legal advice and assistance. From April, ordinary personal injury claims
The number and length of adjournments are key factors in the time taken to complete a case, but there is no single national
Community Legal Service. The LSC and its Regional Committees will •
National Audit Office survey data suggest that nearly three
will not normally be publicly funded as the government believes that
quarters of a million magistrates’ court hearings each year have
such cases are best conducted by way of conditional fee (no-win, no-
to be adjourned because of errors or omissions on the part of
fee) agreements. The quality of such agreements has, however, been
one or more of the participants, including defence. They may
called into question. Michael Gould, a solicitor and legal academic,
result in wasted expenditure of over £40 million each year and
wrote to The Times on this issue last year ((1999) The Times, 23
an average additional delay of more than two weeks in the
November). He noted:
progress of each case. Ineffective trials in the Crown Court may result in waste of an estimated £15 million each year.
I was recently asked for advice by a student on behalf of a friend who was being asked to enter into [a no-win, no-
Clearly, there is much room here for organisational improvement.
fee] agreement. The friend had been injured in an accident while a passenger in a car. The agreement provided for a charging rate of £165 per hour, whatever
Impartial judges
level of fee earner handled the case, and that the client
In what circumstances should a judge excuse him or herself from
would be responsible for payment of the fees if he ended
presiding in a case because of a possible partiality? The law in this area
the agreement early. It authorised the solicitors to retain
was, until recently, quite meagre. Judges related to parties before them,
one quarter of the damages recovered.
or judges with a pecuniary interest in one side of a case were clearly
The implications of these provisions appeared to me to be
required to stand down. Beyond that, however, in the areas of social
that if the client became dissatisfied with the way the
interest, things were much less clear. In 1999, the House of Lords set
office cleaner was handling his claim and took his
aside one of its earlier decisions (in the General Pinochet case) on the
business elsewhere he would pay at the rate referred to
grounds that one of the Lords who delivered an opinion in the first case
above. If he waited until damages were recovered (as
had a connection with Amnesty International – a body which had
they almost inevitably would be in these circumstances),
issued an opinion on the case (see (1999) 27 SLR 28, Summer).
he would hand over a quarter of his damages to his
Following a number of other cases in which lawyers sought to
solicitors in addition to the costs they would recover from
challenge a judgment on the grounds that, through a social interest or
the defendant.
remote financial connection, the judge was potentially biased, the
If this sort of arrangement is common (and that is difficult to tell), then it
Court of Appeal has now given authoritative guidance on this area. The
is clear that many clients are clearly not getting a fair deal.
extraordinary judgment was delivered by Lord Bingham of Cornhill, Lord Chief Justice, Lord Woolf, Master of the Rolls and Sir Richard
The cost of court delay
Scott, Vice Chancellor.
Delay and adjournments are an enormous cause of frustration to citizens who have to use the courts. A new report from the National Audit Office (Lord Chancellor’s Department, Crown Prosecution
Locabail (UK) Ltd v Bayfield Properties Ltd and Another (1999) The Times, 17 November, CA
Service, Home Office, Criminal Justice: Working Together, HC 29 1999/2000, 1 December 1999, ISBN: 0105566179 Price: £16.70)
In respect of five decisions in which the judge’s impartiality was
reveals some alarming facts about the extent of this problem.
questioned, the Court of Appeal ruled on general principles as follows:
It costs about £9 billion each year to process some two million
(1)
A judge who allowed his judicial decision to be influenced by
defendants through the criminal courts. Efficient and effective
partiality or prejudice deprived a litigant of the right to a fair trial
progression of cases depends on the police, the Crown Prosecution
by an impartial tribunal and violated a most fundamental
Service, the courts and other agencies working closely with each other
principle on which the administration of justice rested.
as well as with victims, defendants, witnesses and others. The report contains 63 recommendations designed to deepen collaboration and improve performance. The report’s key findings, conclusions and recommendations
88 • STUDENT LAW REVIEW • 2000 YEARBOOK
(2)
The most effective protection of his right was, in practice, afforded by disqualification and setting aside a decision where real danger of bias was established. Every such case depended
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(3)
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on its particular facts, real doubt being resolved in favour of
proceedings, it was also important to ensure that the rules were not
disqualification. It would, however, be as wrong for a judge to
applied in such a way as to inhibit the increasingly valuable
accede to a tenuous objection as it would be for him to ignore
contribution which solicitors were making to the discharge of judicial
one of substance.
functions.
In determination of their rights and liabilities, civil or criminal, everyone was entitled to a fair hearing by an impartial tribunal. That right, guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953, Cmd 8969), was properly described as fundamental.
The reason was obvious. The Court of Appeal ruled that all legal arbiters were bound to apply the law as they understood it to the facts of individual cases as they found them without fear or favour, affection or ill will: that is, without partiality or prejudice. Any judge (that term embracing every judicial decision maker whether judge, lay justice or juror) who allowed any judicial decision to be influenced by partiality or prejudice deprived the litigant of his important right and violated one of the most fundamental principles underlying the administration of justice. There was one situation where, on proof of the requisite facts, the existence of bias was effectively presumed and in such cases it gave rise to automatic disqualification: namely, where the judge was shown to have an interest in the outcome of the case which he was to decide or had decided: see Dimes v Proprietors of the Grand Junction Canal ((1852) 3 HL Cas 759); R v Rand ((1866) LR 1 QB 230); and R v Camborne Justices ex p Pearce ((1955) 1 QB 41). In any case where the judge’s interest was said to derive from the interest of a spouse, partner, or other family member, the link had to be so close and direct as to render the interest of that other person for all practical purposes indistinguishable from an interest of the judge. The automatic disqualification rule until recently, had widely, if wrongly, been thought to apply only in cases of a judge’s pecuniary or proprietary interest in the outcome of the litigation. However, R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (No 2) ((1999) The Times, 18 January; [1999] 2 WLR 272, pp 283, 284 and 293) made it plain that the rule extended to a limited class of nonfinancial interests, such as an interest in the subject matter in issue arising from the judge’s promotion of some particular cause. The law was settled in England and Wales by the House of
Problems were more likely to arise where a solicitor was sitting in a part time capacity, and in civil rather than criminal proceedings. But, such problems could usually be overcome if, before embarking on the trial of any assigned civil case the solicitor conducted a careful ‘conflict search’ within his firm, even though such a search, however careful, was unlikely to be omission proof. While it would be dangerous and futile to attempt to define or list factors which might or might not give rise to a real danger of bias, since everything would depend on the particular facts, the court could not conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on his social or educational or service or employment background or history, nor that of any member of his family; nor previous political associations, membership of social, sporting or charitable bodies; nor Masonic associations; nor previous judicial decisions; nor extracurricular utterances, whether in textbooks, lectures, speeches, articles, interviews, reports, responses to consultation papers; nor previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; nor membership of the same Inn, circuit, local Law Society or chambers. By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any such member of the public, particularly if that individual’s credibility could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected that person’s evidence in such outspoken terms as to throw doubt on his ability to approach such a person’s evidence with an open mind on any later occasion.
Comment
Lords in R v Gough ([1993] AC 658, pp 668, 670) and, in
In one way, the Court of Appeal was bound to come to this conclusion.
consequence, the relevant test was whether there was in relation to any
Had it ruled that membership of certain societies, or a particular social
given judge a real danger or possibility of bias.
background, or the previous political associations of a trial judge were
When applying the real danger test, it would often be
grounds for appeal, two consequences would follow. First, there would
appropriate to inquire whether the judge knew of the matter relied on
be a rapid expansion of the use by law firms of special units that
as appearing to undermine his impartiality. If it were shown that he did
monitor and keep files on all aspects of judges’ lives. Secondly, there
not, the danger of its having influenced his judgement was eliminated
would be a proliferation of appeals in all departments of the court
and the appearance of possible bias dispelled.
structure at the very time when there is such a concerted effort to
It was for the reviewing court, not the judge concerned, to
reduce the backlog of appeals.
assess the risk that some illegitimate extraneous consideration might
What this decision leaves us with is a question of profound
have influenced his decision. The position of solicitors was somewhat
jurisprudential importance: how far can judges judge in an entirely
different, for a solicitor who was a partner in a firm of solicitors was
neutral and socially-detached manner? Under the new Court of Appeal
legally responsible for the professional acts of his partners and did, as a
guidelines, a judge who was a keen hunter and member of the pro-
partner, owe a duty to clients of the firm for whom he personally might
hunting Countryside Alliance would not be required to stand down
never had acted and of whose affairs he personally might know
from presiding in a case involving anti-hunt protesters. It is difficult,
nothing.
however, to see a practicable alternative way to operate a judiciary.
While it was vital to safeguard the integrity of court
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E N G L I S H
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Jury trials, the CPR, technology and the legal system, solicitors, barristers, judges, and the criminal justice system by Dr Gary Slapper, Director of the Law Programme, The Open University Looking at people who succeed in examinations, it is evident that there are very few, if any, elements to their preparation that all share. The ways in which they have worked during the year, the ways they have revised, and their lifestyles will show a considerable diversity. There are, however, a few tips widely recognised as valuable that you may wish to consider. If you are preparing for an examination you should: •
•
•
The new Bill will be introduced in the House of Commons and
Plan your revision programme so that you can tell, weeks from
takes account of concerns raised both in the House of Lords and
the examination, on what days you will be revising which
elsewhere. The Home Secretary, Jack Straw, said:
subjects and topics.
We have responded to the fears raised about the potential
Have a system for testing your powers of recall: for example,
effects of the provisions relating to reputation and
see if you can recite the topic you have learnt to an imaginary
livelihood in the original Mode of Trial Bill. There was a
audience and re-start this exercise if you falter on any point.
perception that these provisions might discriminate in
Ensure with as many topics as you can that you know not only
favour of prosperous or employed defendants. Under the
the law and its ambiguous points but also what critical
No 2 Bill, therefore, courts would consider the
commentary exists in the area.
circumstances of the offences but not the circumstances
In the examination:
of the defendant. The changes we have made would
•
Stick rigidly to the time for each question, for example, if you
assist the courts to make an objective judgment on
have to write four answers in three hours, do not exceed 45
whether the case should be tried in the magistrates’ courts
minutes for any answer. It will be hard to pick up extra marks
rather than the Crown Court. It would also make any
by slogging away at an answer to which you have already
appeals on mode of trial simpler and easier to handle
devoted 45 minutes; it will be significantly easier to gain the first •
[Home Office statement, 034/2000].
10 marks awardable for the next answer.
The Home Office also said that the Bill improved the safeguards
Focus on the precise question asked and frame your response to
relating to appeals on mode of trial. Under the new Bill, magistrates
answer that question. Avoid simply reproducing in the script
would be required to give reasons for their decisions. It is the intention
(however accurately) everything you have learnt about the
of the Home Secretary that such appeals would be determined by a
relevant theme.
Resident Judge or his nominated deputy, a feature designed to ensure
The right to jury trials Last year, the government failed in its attempt to legislatively limit the cases in which defendants charged with ‘either way’ offences could elect for a jury trial. Its Bill was rejected by the House of Lords. On the 24 February 2000, the government published the Criminal Justice (Mode of Trial) (No 2) Bill with what it described as ‘added safeguards to ensure fair treatment for defendants’ (Home Office statement, 034/2000)
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greater consistency in decision making. An alternative view has been expressed by Professor Lee Bridges of Warwick University (letter, The Independent, 29 February 2000) who argued that magistrates are already permitted to take into account the risk to a defendant’s reputation when deciding where the case should be tried; and that the Bill should be withdrawn and the whole issue of a defendant’s right to jury trial should be put before the Auld Review (a review of all the work of the criminal courts under the Chairmanship of Lord Justice Auld, see http://www.criminal-courtsreview.org.uk).
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The Civil Procedure Rules The new Civil Procedure Rules, the most fundamental changes in civil process for over 100 years, have radically altered the operation of civil justice (see Slapper and Kelly, English Law, 2000, London: Cavendish Publishing, Chapter 11). Since the new Rules came into force (26 April 1999), they have been regularly reformed. The 11th update came into force on 14 February this year. Part of the rationale of the new Rules was to expedite the way cases were dealt with and to allow more cases to be settled early through negotiation between the parties or alternative dispute resolution. In this respect, there is some evidence of success. During the May to August period 1999, there was a 25% reduction in the number of cases issued in the county courts compared with the same period the previous year. By the end of January 2000, there was a further fall to 23%. There is also evidence (speech by David Lock MP, Parliamentary Secretary to the Lord Chancellor’s Department, 15 October 1999) that changes to pre-action behaviour as a result of the pre-action protocols have been partly responsible for the reduction in the number of cases going all the way through to trial. In the first version of Conditional Fee Arrangements, only people who expected to win money from their case could benefit from conditional fees. This was the only way that most people could afford to pay the success fee. But it meant that a successful litigant would not receive all the money he or she had been awarded. So, the government took the power in the Access to Justice Act 1999 to make it possible for the winning party to recover the success fee, and any insurance premium, from the losing party. This will ensure that it is the person or organisation that has committed the legal wrong who pays, and it will allow defendants and claimants (other than in family law cases) whose case is not about money to use CFAs. An interesting assessment of the new Rules was recently provided by Mr Justice Burton of the Queen’s Bench Division. Speaking at the city law firm Kennedys, he outlined five benefits of the reforms, five problems, and what he referred to as ‘one big question mark’ (Law Society Gazette, 10 February 2000). The five problems with the reforms were: the courts’ inflexibility in not allowing parties to agree extensions of time between themselves; the danger of the judiciary pushing time guillotines on to parties; the risk that lawyers and clients could exploit ‘standard’ disclosure to conceal important documents; single joint experts possibly usurping the role of judges; and summary assessments of costs leading to judges making assumptions replacing detailed costs analysis. He itemised the benefits as: pre-action protocols, emphasis on encouraging settlement, judicial intervention, Pt 24 strike-out provisions and Pt 36 offers to settle. Mr Justice Burton said there had been three options for reforming appeals: (1)
to extend the present system in order to discourage more than one appeal;
(2)
to refuse appeals without leave; or
(3)
to abolish the present system, giving no right to rehearings, only appeals.
He said he regretted that all three had been adopted (in the Access to Justice Act 1999). The consequence will be pressure on judges ‘to get it right first time’ and higher costs for parties.
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Information and communications technology (ICT) and the law Changes in technology produce changes in social practice. In the world of law, practice has, from a distant perspective, changed very little over the centuries. The establishment by William Caxton of a printing press at Westminster in 1476 began a series of changes that were to drastically affect the doctrine of precedent in particular, and, therefore, law in general. Printing enabled judges and lawyers in one part of the country to learn about other judgments with greater speed and accuracy than ever before. The pervasion of the telephone and the photocopier in the 20th century also had significant consequences for law. The effect of ICT on law in the 21st century will undoubtedly run wide and deep. The Community Legal Service (CLS) (see Slapper and Kelly, The English Legal System, 4th edn, 1999, London: Cavendish Publishing, Chapter 12) will be launched this Spring and its use of ICT will, if current plans are properly implemented, make legal advice much more accessible for many people than was previously the case. The idea is that the CLS will create local networks of legal services, based on local needs and priorities, and deal with matters that most affect peoples’ everyday lives, such as debt problems, housing or entitlement to benefits. Local partnerships will identify local needs for legal advice, and set local priorities to ensure funds are directed at the areas of greatest need. There will be a CLS ‘Quality Mark’ that will identify the legal advisers who provide good quality advice and information. A CLS website will be established to give people direct access to good practical, on-line information for a range of legal and related issues, and to signpost them to organisations who can offer help face to face. Measures in the Electronic Communications Bill currently before Parliament would also, if enacted, have a major effect on the way law works. The time needed to buy a house would be cut from months to a matter of weeks, or even days. Under English law, the process of buying and selling houses, flats, buildings and land (called ‘real property’) is protracted. Computers cannot now be used to facilitate these transactions in the way a non-lawyer (especially an ICT expert!) might expect. This is because the law requires that contracts for the sale of land and the deed required to convey land must be in writing and signed – a deed must also be witnessed (Law of Property (Miscellaneous Provisions) Act 1989). These requirements date back to 1677 and 1845. Electronic conveyancing is the legal process of the transfer of ownership of land from one person to another. However, the term is often used to describe the whole of the legal work associated with the buying and selling of land from the initial searches (where lawyers check to see if the property has any legal obligations associated with it) and inquiries, through exchange and completion of contracts, to registration of title. In its fullest sense, electronic conveyancing will enable all of that work and registration of title at HM Land Registry to be done without paper and without any manual signatures. Under the Bill, all the conveyancing information needed to sell or buy a property would (via computers) be made available quickly and simultaneously to everybody concerned. This would enable problems to be identified and resolved at the outset of a series of transactions rather than much later on. The new system will require up to date, widely accessible electronic databases which will provide information
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to buyers, sellers and their legal representatives. This requires co-
One area where this unevenness is particularly evident is in
operation from local authorities, public utilities, and others. Today, 15
rape trials. Figures recently released to the Bar Council by the Lord
million properties are registered electronically; and online access is
Chancellor’s Department show that there were 170 payments made to
widely available for those who wish to use it. Nonetheless, the creation
QCs defending in rape trials in the 12 months to April 1997, compared
of a national electronic database of land information sufficient to
with just 17 payments to prosecuting QCs for the same period.
provide comprehensive online search facilities will take time.
Professor Jennifer Temkin of Sussex University, author of the study Prosecuting and Defending Rape – Perspectives from the Bar, has said:
Divided solicitors The widening gap between solicitors who opt to practice in areas like criminal law, family law, welfare law, employment and housing law, and those who wish to specialise in corporate and commercial law has been the subject of report from time to time (for example, Money Guardian, 23 January, 1999). The trend shows no signs of abating, and two recent developments confirm this. In February, The Law Society of England and Wales recommended that, from 1 August 2000, the minimum wage for central London trainee solicitors should rise from £12,150 to £13,600 (The Lawyer, 15 February 2000). A week later, however, it was reported that the large city firm SJ Berwin will raise the salary of its newly qualified assistant solicitors to £45,000. A recruitment specialist, Yvonne Smyth, was quoted as saying: The rise will attract lawyers in huge demand – IT and telecoms, private equity and corporate finance. Berwins will be able to attract people from the larger firms and be a real alternative financially to the US firms. It is because the firm is so profitable it can do this [The Lawyer, 21 February 2000].
The significance of this for students of the English legal system concerns the availability of lawyers across the full range of legal specialisms. If the structure and system for remunerating lawyers leads to a disproportionately high number wishing to go into corporate mergers and finance, then the needs of a relatively small section of the
‘when you have a junior person up against a well paid and experienced QC, it’s just carnage’ (The Independent, 28 February 2000). Ministers believe that they have found a solution which will meet concerns over escalating expenditure and will contribute towards the government’s objective of promoting confidence in the criminal justice system. The long term solution is seen by the government to be to pay both prosecution and defence advocates within the same fee structure. In an official statement (LCD, 17 February, 45/00), the government says, though, that such a major change cannot be introduced overnight and has presented a series of progressive measures designed to ease the transition. In April 2000, there will be targeted increases to the lowest CPS fees where the disparity with defence advocates is at its widest. The cases which will be paid at higher rates are at the lower end of the scale of seriousness, but by volume represent the bulk of the criminal cases prosecuted at the Crown Court. By October 2000, after consultation with the Bar Council, the government intends to introduce new graduated fee rates. This may result in a reduction to current rates for defence advocates, depending on the evidence gathered through consultation. It also intends to extend the coverage of the current scheme from trials of up to 10 days in length to trials lasting up to 25 days. It is intended to introduce a unified scheme by April 2001.
The judiciary
community (large companies) will be very well served while the
Judges have historically risen above using actions for libel to defend
majority whose problems concern private law and public law issues
their dignity. However, if disrespect for a judge reaches the pitch of
will be under served.
‘scurrilous abuse’, it can amount to the crime of contempt of court. In the case of R v Gray [1900] 2 QB 36, the editor of the Birmingham
Equalising prosecution and defence advocates
Evening Post was fined £100 with £25 costs for abusing Mr Justice Darling with phraseology which included a reference to the judge as ‘the impudent little man in horse hair, a microcosm of conceit and empty-headedness’.
The remuneration of lawyers is also an issue in the criminal courts.
Now judges are to be given access to public funds to sue for
Some might say that the pay of court lawyers in criminal law should not
libel, and to be given special training in how to deal with over-intrepid
be the subject of particular concern where they are paid by the state
reporters who ‘doorstep’ them outside their homes. The new rules will
because such lawyers are (or should be) inspired by their vocation to
form part of a strategy to protect judges against ‘gross libels’. Funds
deliver an excellent service and should not be overly concerned about
would be available only in extreme cases when a member of the public
money! The same argument has been advanced in respect of nurses
or a newspaper’s comments affected the whole judiciary rather than
and fire fighters if they dare to ask for more money!
just the individual judge. Aggrieved judges would be required to show
The Lord Chancellor’s Department, admirably, some would say,
that they had tried to settle the matter by way of an out of an apology
does not take this position. In February, the Lord Chancellor, Lord
and correction before commencing legal proceedings. If that failed, the
Irvine, and the Attorney General, Lord Williams of Mostyn, announced
Lord Chancellor would decide whether an action by a judge would be
their intention to remove the current disparity in fees paid to advocates
in the public interest. The change in the rules seems to have been
employed on defence and prosecution work in criminal trials.
prompted by more than one furious litigant in person (LIP) having made
The government has been concerned for some time that the
defamatory remarks about judges. As the old legal aid system is closed
higher fees paid to defence advocates is having an adverse effect on the
down (see Slapper and Kelly, English Law, 2000, London: Cavendish
standard of advocates undertaking prosecution work. There are
Publishing, Chapter 16), the number of LIPs is expected to rise. One key
disparities of up to 34% in favour of defence advocates, which are most
issue here will be whether, when the first such case comes before the
marked in shorter cases.
courts, a judge can impartially evaluate a case in which a citizen alleges that, say, most judges are part of an old boys’ network?
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Judicial independence
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This latest move to systematise the operation of criminal justice can be seen within a particular setting. This has been, for many years, an
The office of the Lord Chancellor in the English legal system has long
accepted descriptive term used by social scientists, journalists and,
been regarded as strange in that it quite blatantly violates the doctrine of
occasionally, lawyers. Officially, however, there is no such thing as the
the separation of powers. This theory, developed by the French liberal
‘criminal justice system’. Governmental responsibilities, for example,
philosopher Montesquieu in his work L’Espirt des Lois (1748), states
overlap in this area. The Home Secretary is responsible for the
that where the legislative, executive and judicial functions of
Metropolitan Police, criminal statistics, the Probation Service, and the
government are carried out by separate and independent bodies of
Crown Prosecution Service (and, more broadly, for ‘law and order’),
people, then misgovernment and tyranny can be avoided. By and large,
while the Lord Chancellor is responsible for all the criminal law courts,
the British constitution fits the theory but the Lord Chancellor exercises
the appointment of magistrates, and the judges. Nonetheless, in recent
power in all three branches of government. He is a senior politician in
times, there has been increasing governmental recognition of
that he has a seat in the Cabinet, he is President (Speaker) of the House
something called the ‘criminal justice system’. On 30 December 1998,
of Lords, and Head of the judiciary under the Crown. In the past year,
for example, a single official statement entitled ‘Joint Press Release on
when he has not been helping to form government policy in the
the Criminal Justice System Public Service Agreement’ was issued on
Cabinet, and bringing in legislation in Parliament, the Lord Chancellor
behalf of the Home Office, the Lord Chancellor’s Department, and the
has sat four times as a judge.
Attorney General’s Office. It stated:
There might be change, however, on the horizon. The European
The overarching aims, objectives and performance
Court of Human Rights has recently ruled that the right to a fair trial
measures for the criminal justice system have been
(under Art 6.1 of the ECHR) of a Guernsey man was jeopardised
published for the first time in a cross-departmental Public
because the judge who presided over his case, the Guernsey Bailiff,
Service Agreement. The three departments, and their
was both a member of the judiciary and the legislature (case of
respective services, will be working more closely than
Mcgonnell v the United Kingdom Application No 00028488/95
ever before to ensure that the criminal justice system
08/02/2000). The reasoning would appear to affect that of the UK’s
protects the public and delivers justice. Inter-agency co-
Lord Chancellor, although, in responding to a Parliamentary question
operation will be promoted at regional, local, as well as
(The Times, ‘Law’, 29 February 2000) on this issue, Jane Kennedy, an
at the national level. Ministers believe that these
LCD minister said that the decision was confined to the ‘special
arrangements are a good example of ‘joined-up
position’ of the Guernsey Bailiff.
government’
in
practice
[italics
added]
[http://www.nds.coi.gov.uk/coi/coipress.ns].
The criminal justice system In March 1994, Lord Woolf was appointed to review the rules of procedures of all the civil courts in England and Wales. The aims of the review were to improve access to justice, reduce the cost of litigation and the complexity of the rules and to improve the use of technology. The review resulted in the 1996 Woolf Report Access to Justice, and then the Civil Procedure Act 1997 followed by the new Civil Procedure Rules. As noted in this article (see CPR above). Now, the Lord Chancellor has appointed Lord Justice Auld, a senior judge of the Court of Appeal, to report on the working of the criminal courts by the end of 2000. His terms of reference are to conduct: ... a review into the practices and procedures of, and the rules of evidence applied by, the criminal courts at every level, with a view to ensuring that they deliver justice fairly, by streamlining all their processes, increasing their efficiency and strengthening the effectiveness of their relationships with others across the whole of the criminal justice system, and having regard to the interests of all parties including victims and witnesses, thereby promoting public confidence in the rule of law.
The significance of such a pronouncement is that it reveals an attempt to make co-ordinated policy in respect of each of these branches of operation. In fact, the statement goes on to become quite explicit. It said that the three ministers had set two overarching aims to provide a strategic direction for the system as a whole. They had made clear that every part of the criminal justice system (including the police, courts, Crown Prosecution Service, prison and probation services) should work together so as to best serve and protect the public. The two overarching aims are: •
to reduce crime and the fear of crime and their social and
•
to dispense justice fairly and efficiently and to promote
economic costs; and confidence in the rule of law. It will be a major achievement if the government can by reforms establish a long term reversal in the high annual crime figures, and reinvigorate public confidence in the criminal justice system. According to the latest Recorded Crime Statistics for England and Wales (Government Statistical Service, Issue 1/00, 18 January 2000), there were in the period October 1998–September 1999, 5.2m notifiable offences (that is, the more serious offences) recorded by police. This shows a 2.2% increase on the figure for the previous 12 months. The majority of crimes were property offences (84% of all recorded crime).
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Civil litigation and the CLS, the CPS and the police, advocates’ liability, and the Criminal Cases Review Commission by Dr Gary Slapper, Director, The Law Programme, The Open University The shrinking of civil litigation Despite much public fuss about the growth in the litigiousness of our society, the official figures tell of a decline in litigation in England and Wales. The Judicial Statistics (Lord Chancellor’s Department) released at the
clearly have no realistic means of contributing to costs, thus effectively
end of July 2000 show that there has been an 11% drop in county court
preventing them from pursuing valid cases.’
claims since the introduction of the Woolf reforms. Last year, there were 2,000,337 claims, a fall of 244,987 cases on the 1998 figure. Actions in the High Court saw an even more dramatic drop – a 37% fall in actions last year down to 72,161. It might well be that the number of actions formally commenced has fallen while social litigiousness has risen. This could happen if many more actions were being threatened but were being settled by solicitors before actions went to court. The phenomenon of a more litigious society can be interpreted in two antithetical ways. You can see it as a good thing because more people are asserting their rights and are testing new claims to improve the legal protection afforded to consumers, voters, drivers, students, patients, employees, and so forth. By contrast, though, you can see it as a bad thing because the law is putting more people into arms length, mistrustful relationships and thereby pervading communities with formal and confrontational styles of dispute settlement. The latest plans for the way the new Community Legal Service (CLS) will fund deserving cases are likely to further reduce civil litigation. The CLS fund replaced civil legal aid in April 2000 (see Slapper and Kelly, The English Legal System, 4th edn, 1999, Cavendish Publishing, Chapter 12). The latest proposals appear in a consultation paper (Community Legal Service: Financial Conditions for Funding by the Legal Services Commission; LCD, July 2000). The new plan requires currently eligible people to pay a larger contribution, and one proposal requires a person with more than £3,000 equity in his house (if someone sells his house, the equity is the money he would have remaining after he paid off his mortgage) to make a contribution to his CLS funded case. Currently, home owners with up to £100,000 equity are eligible to receive full funding provided they meet the other criteria of disposal income and disposable capital. Richard Miller, acting director of the Legal Aid Practitioners Group said (Gazette, 3 August, 2000): ‘… these rules will demand money from people who quite
The CPS and the police A recent move to integrate the work of the Crown Prosecution Service and the police can be seen, in some ways, as taking the prosecution system back to the model operating in 1985 when the CPS was established. One of the most prominent reasons for the establishment of the CPS was the perceived need to separate the investigative and prosecutorial roles historically both performed by the police. It was thought that the old system raised too great a danger that police officers, who had investigated a crime and charged a suspected culprit, might, in many cases, not have sufficient detachment to form a balanced view of the weight of the evidence. The police were also not best placed, it was argued, to consider any public policy aspects inherent in the discretion to prosecute. However, after 15 years of the CPS, lack of communication between the police and CPS prosecutors was seen by many (especially some police officers who distressed at the number of case files they submit which are not prosecuted, have dubbed the CPS the ‘Criminal Protection Society’) as problematic. In an attempt to improve liaison between the police investigating a case and the CPS, a pilot scheme, launched in several police stations in 1996, put a CPS officer with a desk in the police station. The government then resolved to introduce such ‘Criminal Justice Units’ on a national basis. Now the CPS has launched what it terms the start of a ‘revolution’ in prosecuting crime. In June 2000, Lord Williams of Mostyn, the Attorney General, opened the first of many new justice units to be rolled out over the following two years across England and Wales (http://tap.ccta.gov.uk/cps/ infoupdate3). The units were a key recommendation of Sir Iain Glidewell in his report on the CPS in 1998. For the first time since the service was established in 1986, Crown prosecutors and the police will work together on cases in the same office.
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E N G L I S H The reforms will see a return to the principle of police and lawyers working on a case together. The first units will be set up in Avon and Somerset: a trials unit, to handle serious crimes, is being set
L E G A L
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office.co.uk/pa/ld199900/ldjudgmt
Background
up at the CPS offices in Bristol and a criminal justice unit, based in
Lawyers are, for the general public, the most central and prominent part
police accommodation, will handle the magistrates’ courts cases. In
of the English legal system. They are, arguably, to the legal system what
place of duplicate police/CPS files for 30,000 magistrates’ court, cases
doctors are to the health system. For many decades, a debate has
will be one single file on which both lawyer and police officer will
grown about why a patient injured by the negligence of a surgeon in
work.
the operating theatre can sue for damages whereas a litigant whose The trials unit will be staffed by 41 CPS and 10 police staff, and
case is lost because of the negligence of his advocate cannot sue. It all
will handle 3,000 serious Crown Court cases a year. The DPP, David
seemed very unfair. Even the most glaringly obvious courtroom
Calvert-Smith QC, has stated that the new system will see:
negligence was protected against legal action by a special advocates’
… police detectives and senior prosecution lawyers
immunity. The claim that this protection was made by lawyers (and
working more closely on serious casework such as rape,
judges who were lawyers) for lawyers was difficult to refute. In this
armed robbery and murder. CPS lawyers will be on hand
House of Lords’ decision, the historic immunity has been abolished in
at the outset of police inquiries to advise senior officers on
respect of both barristers and solicitor-advocates (of whom there are
legal aspects of investigations and subsequently prepare
now over 1,000 with higher courts rights of audience), and for both
cases for Crown Court.
civil and criminal proceedings.
Under the old system, the police would build a file, then copy it to the CPS – a process repeated in 30,000 cases a year. All the evidence and witness statements were similarly copied, and sent off to the CPS under separate cover. Notifying witnesses would also be done on paper, through the post. Technology will now enable instant updating of files with investigating officers and CPS lawyers communicating about cases via email. Under the new system, the police still retain the decision to charge. Even so, the architects of the innovation hope that the police will more readily ask prosecutors for legal advice before charge, and thereby reduce the likelihood of cases being discontinued at a later stage. Neil Addison, a barrister and former prosecutor, has acknowledged that closer links will cut costs: Administration between CPS and the police has been the major weakness in the way the CPS was set up. I’ve always taken the view that they do have to work together ... it is unrealistic to think they can work in self-contained cocoons. [(2000) The Times, 27 June.]
Facts In three cases, all conjoined on appeal, a claimant raised a claim of negligence against a firm of solicitors, and in each case the firms relied on the immunity attaching to barristers and other advocates from actions in negligence. At first instance, all the claims were struck out. Then, on appeal, the Court of Appeal said that claims could have proceeded. The solicitors appealed to the Lords and two key questions were raised: should the old immunity rule be maintained, and, in a criminal case, what was the proper scope of the principle against ‘collateral attack’? A ‘collateral attack’ is when someone convicted in a criminal court tries to invalidate that conviction outside the criminal appeals process by suing his trial defence lawyer in a civil court. The purpose of such a ‘collateral attack’ is to win in the civil case, proving negligence against the criminal trial lawyer, and, thus, by implication, show that the conviction in the criminal case was unfair.
Held
There are, however, still serious misgivings in some quarters about such
The House of Lords held (Lord Hope, Lord Hutton and Lord Hobhouse
close liaison between police and prosecuting lawyers. Some defence
dissenting in part) that, in the light of modern conditions, it was now
lawyers and prosecutors are worried about a return to the ‘bad old
clear that it was no longer in the public interest in the administration of
days’ before the CPS when, during the 1970s and 1980s, many
justice that advocates should have immunity from suit for negligence
suspects were wrongly convicted because strong evidence proving their
for acts concerned with the conduct of either civil or criminal litigation.
innocence was deliberately disregarded. There is concern that under
Lord Hoffman (with Lord Steyn, Lord Browne-Wilkinson and
the new system, with lawyers and police officers working in the same
Lord Millett delivering concurring opinions) said that over 30 years had
office the police could pressurise prosecution lawyers into taking
passed since the House had last considered the rationale for the
flawed cases to court. Malcolm Fowler, chairman of the Law Society’s
immunity of the advocate from suit in Rondel v Worsley [1969] 1 AC
criminal law committee has suggested that:
191. Public policy was not immutable and there had been great
… the problem is when the police develop a case theory
changes in the law of negligence, the functioning of the legal
for the crime and then only present evidence which fits
profession, the administration of justice and public perceptions. It was
that theory. [(2000) The Independent, 26 June.]
once again time to re-examine the whole matter. Interestingly, Lord Hoffmann chose to formulate his opinion in a creative mode to reflect
Advocates’ liability for courtroom negligence
public policy rather than in the tradition of what can be seen as slavish obedience to the details of precedent: I hope that I will not be thought ungrateful if I do not encumber this speech with citations. The question of
Arthur JS Hall & Co v Simons and Other Appeals (2000) The Times, 21 July, HL
what the public interest now requires depends upon the strength of the arguments rather than the weight of authority.
Internet report at www.parliament.the-stationery-
The point of departure was that in general English law provided a remedy in damages for a person who had suffered injury as a result of
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professional negligence. It followed that any exception which denied
His only duty was to tell the truth. There was no analogy with the
such a remedy required a sound justification. The arguments relied on
position of a lawyer who owed a duty of care to his client. The fact that
by the court in Rondel v Worsley as justifying the immunity had to be
the advocate was the only person involved in the trial process who was
considered. One by one these arguments are evaluated and rejected.
liable to be sued for negligence was because he was the only person who had undertaken such a duty of care to his client.
Advocate’s divided loyalty There were two distinct versions of the divided loyalty argument. The
Collateral attack
first was that the possibility of being sued for negligence would actually
The most substantial argument was that it might be contrary to the
inhibit the lawyer, consciously or unconsciously, from giving his duty
public interest for a court to retry a case which had been decided by
to the court priority to his duty to his client. The second was that the
another court. However, actions for negligence against lawyers were
divided loyalty was a special factor that made the conduct of litigation a
not the only cases that gave rise to a possibility of the same issue being
very difficult art and could lead to the advocate being exposed to
tried twice. The law had to deal with the problem in numerous other
vexatious claims by difficult clients. The argument was pressed most
contexts. So, before examining the strength of the collateral challenge
strongly in connection with advocacy in criminal proceedings, where
argument as a reason for maintaining the immunity of lawyers, it was
the clients were said to be more than usually likely to be vexatious.
necessary to consider how the law dealt with collateral challenge in
There had been recent developments in the civil justice system
general.
designed to reduce the incidence of vexatious litigation. The first was
The law discouraged relitigation of the same issues except by
Rule 24.2 of the new Civil Procedure Rules which provided that a court
means of an appeal. The Latin maxims often quoted were nemo debet
could give summary judgment in favour of a defendant if it considered
bis vexari pro una et eadem causa and interest rei publicae ut finis sit
that ‘the claimant had no real prospect of succeeding on the claim’. The
litium. The first was concerned with the interests of the defendant: a
second was the changes to the funding of civil litigation introduced by
person should not be troubled twice for the same reason. That policy
the Access to Justice Act 1999 which would make it much more
had generated the rules which prevented relitigation when the parties
difficult than it had been in the past to obtain legal help for negligence
were the same: autrefois acquit (someone acquitted of a crime cannot
actions which had little prospect of success.
be tried again for that crime); res judicata (a particular dispute decided
There was no doubt that the advocate’s duty to the court was extremely important in the English justice system. The question was
by a civil court cannot be re-tried) and issue estoppel (a person cannot deny the fact of a judgment previously decided against him).
whether removing the immunity would have a significantly adverse
The second policy was wider: it was concerned with the
effect. If the possibility of being held liable in negligence was calculated
interests of the State. There was a general public interest in the same
to have an adverse effect on the behaviour of advocates in court, one
issue not being litigated over again. The second policy could be used to
might have expected that to have followed, at least in some degree,
justify the extension of the rules of issue estoppel to cases in which the
from the introduction of wasted costs orders (where a court disallows a
parties were not the same but the circumstances were such as to bring
lawyer from being able to claim part of a fee for work which is regarded
the case within the spirit of the rules. Criminal proceedings were in a
as unnecessary and wasteful). Although the liability of a negligent
special category because although they were technically litigation
advocate to a wasted costs order was not the same as a liability to pay
between the Crown and the defendant, the Crown prosecuted on
general damages, the experience of the wasted costs jurisdiction was
behalf of society as a whole. So, a conviction had some of the quality of
the only empirical evidence available in England to test the proposition
a judgment in rem, which should be binding in favour of everyone.
that such liability would have an adverse effect upon the way advocates
Not all re-litigation of the same issue, however, would be
performed their duty to the court and there was no suggestion that it
manifestly unfair to a party or bring the administration of justice into
had changed standards of advocacy for the worse.
disrepute. Sometimes, there were valid reasons for re-hearing a dispute. It was therefore unnecessary to try to stop any re-litigation by forbidding
The ‘cab rank’ The ‘cab rank’ rule provided that a barrister could not refuse to act for a client on the ground that he disapproved of him or his case. The argument was that a barrister, who was obliged to accept any client, would be unfairly exposed to vexatious actions by clients whom any sensible lawyer with freedom of action would have refused to act for. Such a claim however was, in the nature of things, intuitive, incapable of empirical verification, and did not have any real substance.
The witness analogy
anyone from suing their lawyer. It was ‘burning down the house to roast the pig; using a broad spectrum remedy without side effects could handle the problem equally well’. The scope for re-examination of issues in criminal proceedings was much wider than in civil cases. Fresh evidence was more readily admitted. A conviction could be set aside as unsafe and unsatisfactory when the accused appeared to have been prejudiced by ‘flagrantly incompetent advocacy’: see R v Clinton ([1993] 1 WLR 1181). After conviction, the case could be referred to the Court of Appeal, if the conviction was on indictment, or to the crown court, if the trial was summary, by the Criminal Cases Review Commission.
The argument started from the well established rule that a witness was
It followed that it would ordinarily be an abuse of process for a
absolutely immune from liability for anything that he said in court. So
civil court to be asked to decide that a subsisting conviction was wrong.
were the judge, counsel and the parties. They could not be sued for
That applied to a conviction on a plea of guilty as well as after a trial.
libel, malicious falsehood or conspiring to give false evidence. The
The resulting conflict of judgments was likely to bring the
policy of the rule was to encourage persons who took part in court
administration of justice into disrepute. The proper procedure was to
proceedings to express themselves freely. However, a witness owed no
appeal, or if the right of appeal had been exhausted, to apply to the
duty of care to anyone in respect of the evidence he gave to the court.
Criminal Cases Review Commission. It would ordinarily be an abuse
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because there were bound to be exceptional cases in which the issue
tends to erode confidence in the legal system if
could be tried without a risk that the conflict of judgments would bring
advocates, alone among professional men, are immune from liability for negligence.
the administration of justice into disrepute. Once the conviction has been set aside, there could be no
The case raises and explores many key issues of the legal system
public policy objection to an action for negligence against the legal
including the proper relationship between lawyers and the courts, the
advisers. There could be no conflict of judgments. On the other hand,
proper relationship between lawyers and clients, the differences
in civil, including matrimonial, cases, it would seldom be possible to
between criminal and civil actions, professional ethics, the nature of
say that an action for negligence against a legal adviser or
dispute resolution, and the circumstances under which the courts
representative would bring the administration of justice into dispute.
should make new law. Above all, however, the case has one simple
Whether the original decision was right or wrong was usually a matter
significance: ‘it will’, in the words of Jonathan Hirst QC, Chairman of
of concern only to the parties and had no wider implications. There
the Bar Council, ‘mean that a claimant who can prove loss, as the result
was no public interest objection to a subsequent finding that, but for the
of an advocate’s negligence, will no longer be prevented from making a
negligence of his lawyers, the losing party would have won.
claim. We cannot really say that is wrong’ ((2000) Bar News, August, p
But again there might be exceptions. The action for negligence
3).
might be an abuse of process on the ground that it was manifestly unfair to someone else. Take, for example, the case of a defendant who published a serious defamation which he attempted unsuccessfully to justify. Should he be able to sue his lawyers and claim that if the case
The Criminal Cases Review Commission
had been conducted differently, the allegation would have been proved to be true? It seemed unfair to the plaintiff in the defamation action that any court should be allowed to come to such a conclusion in proceedings to which he was not a party. On the other hand, it was equally unfair that he should have to join as a party and rebut the allegation for a second time. A man’s reputation was not only a matter between him and the other party. It represented his relationship with the world. So it might be that in such circumstances, an action for
The Commission was created under the Criminal Appeal Act 1995 to review suspected miscarriage of justice cases and to refer to the appropriate court of appeal any conviction, verdict or sentence when there is a possibility that it would not be upheld. The function of the Commission in the legal system is that of an important safeguard against injustice (see Slapper and Kelly, The English Legal System, 4th edn, 1999, Cavendish Publishing, pp 121–23). The third Annual Report of the Commission (http://ccrc.gov.uk,
negligence would be an abuse of the process of the court. Having regard to the power of the court to strike out actions which had no real prospect of success, the doctrine was unlikely in that context to be invoked very often. The first step in any application to strike out an action alleging negligence in the conduct of a previous action had to be to ask whether it had a real prospect of success. Lord Hope, Lord Hutton and Lord Hobhouse delivered judgments in which they agreed that the immunity from suit was no longer required in relation to civil proceedings but dissented to the extent of saying that the immunity was still required in the public interest in the administration of justice in relation to criminal
ISBN 1 84082 480, 15 June 2000) was published in the summer. In a letter to the Home Secretary published at the outset of the report, the Chairman, Sir Frederick Crawford, says that although the number of Case Review Manager positions has been increased from 28 to 40 during 1999–2000, there was still a backlog of about 900 cases to be reviewed. This meant that, ‘if the legitimate expectations of Parliament and the Commission’s other stakeholders are to be satisfied, the gap between resources and casework must be closed’. The backlog of cases might rise even higher after 2 October when the Human Rights Act 1998 comes into force. In the last three years, the Commission has received 3,193
proceedings.
applications to review convictions and sentences. It has referred 80
Comment
cases to courts of appeal, 27 of which have resulted in convictions
This decision is of major and historic importance in the English legal
term objective of the Commission is ‘to analyse the causes of
system for several reasons. It can be seen as a bold attempt by the
miscarriages of justice, and to suggest ways in which the criminal
senior judiciary to drag the legal profession (often a metonymy for the
justice system might be improved to minimise their occurrence’. It
whole legal system) into the 21st century world of accountability and
notes that, considering its experience to date, the leading reasons for its
fair business practice. In his judgment, Lord Steyn makes this dramatic
80 referrals are:
observation:
(1)
Prosecution failings (27 cases of breaches of identification and
(2)
Scientific evidence (26 cases, for example, DNA, medical and
(3)
Non-disclosure (23 cases, for example, of police information,
being quashed or sentences modified. The report notes (2.4) that a long
… public confidence in the legal system is not enhanced by the existence of the immunity. The appearance is
interview procedure, or use of questionable witnesses).
created that the law singles out its own for protection no matter how flagrant the breach of the barrister. The world has changed since 1967. The practice of law has become
psychiatric, fingerprint). interviews or statements).
more commercialised: barristers may now advertise. They
It is likely that the number and range of applications made to the CCRC
may now enter into contracts for legal services with their
will multiply prodigiously as a result of the coming into force of the
professional clients. They are now obliged to carry
Human Rights Act 1998. Citizens facing a criminal charge will have a
insurance. On the other hand, today we live in a
new domestic right, as provided for by Art 6 of the European
consumerist society in which people have a much greater
Convention on Human Rights, to ‘a fair and public hearing’, and Art
awareness of their rights. If they have suffered a wrong as
6(3)(d) ‘to examine or have examined witnesses against him and to
the result of the provision of negligent professional
obtain the attendance and examination of witnesses on his behalf’.
services, they expect to have the right to claim redress. It
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Case notes Van Rooij v Dagelijks Bestuur van het Waterschep de Dommel and Nederhof v Dijksgraaf en Hoogheemraden Van Het ............................................................99 Royal Society for the Protection of Birds v Secretary of State for Scotland ................99 R v Moynihan ..........................................................................................................100 R v Environment Agency ex p Petrus Oils Ltd..........................................................100 Dudley MBC v Henley Foundries ............................................................................101 Re Celtic Extraction and Re Bluestone Chemicals ..................................................101 Manley v New Forest DC ........................................................................................101 Monsanto v Tilly and Others....................................................................................101 R v Falmouth and Truro Port Health Authority ex p South West Water Ltd ............101 R v Milford Haven Port Authority ............................................................................103
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Case notes
Comment
by Simon Payne, Senior Lecturer in Law, University of Plymouth
hazardous substances. These are made up of two lists – Lists I and II –
Water – meaning of discharge
One or two basic points first of all – Directive 76/464/EEC is one of the key water Directives. It seeks to protect water from certain listed and both are general descriptions of families of substances (chemicals, metals, etc) rather than a huge list of specific substances which would constantly have to be reviewed as new chemicals are developed. The Directive operates on the basis that List I substances should be eliminated from being discharged into water. List II substances should be subject to strict controls requiring prior authorisation for their discharge and that either emission limits are not exceeded or overall
Van Rooij v Dagelijks Bestuur van het Waterschep de Dommel and Nederhof v Dijkgraaf en Hoogheemraden Van Het Cases No 231/97 and 232/97 (1999) The Times, 15 October; (1999) ENDS 298 – 46/47
water quality is monitored and is maintained within set parameters. The emission limits or quality standards have to be substance specific and are set by means of daughter directives under the 76/464 framework. This has been done for some substances but not very many. As to the specifics of the case. First, it emphasises that the
Facts
Directive operates even where daughter directives have not been put in place. As the Commission identified, some 100 or so substances for List
These two European Court of Justice cases both concerned the meaning
I in the early 1990s for which no daughter directives have followed this
of the word ‘discharge’ in relation to Directive 76/464/EEC on the
is important. Secondly, on the specifics of the meaning of the word
dangerous substances in water. The Van Rouij case concerned the
‘discharge’ – the breadth of the meaning concentrating on an
steam treatment of wood with preservatives which lead to steam
identifiable person causing the pollution by their act is clearly of
containing List II substances precipitating into nearby surface water
assistance in protecting water. The limit of liability appears to have
directly or indirectly by means of roof, drains, gutters, etc. The ECJ had
been set by the court according to reasonable foresight. This is at odds
to rule on whether this was encompassed within the meaning of the
with UK case law which regards forseeability as irrelevant in
word discharge even though the pollution was indirect and via the
determining liability for causing water pollution – see s 85 of the Water
atmosphere or whether the Directive term ‘discharge’ was limited to
Resources Act 1991 and, for example, Empress v National Rivers
more direct acts of pollution.
Authority [1998] 2 WLR 228. Discharge has not been defined in the
The second case concerned the placing of creosote treated
pollution context by the UK courts but commentators have thought that
posts into water from which List I (but where no daughter directive had
it implied a direct and deliberate placing of a substance into for
set limit values) substances were leaching. The court had to consider
example water. This is reinforced by the concept of a ‘discharge’
whether this amounted to a discharge and the nature of the obligations
consent – see Sched 10 and s 88 of the WRA 1991. If you examine s 85
of States in respect of such List I substances. As to the word discharge,
of the WRA 1991, you will find some offences refer to causing an
the same definition was used as in Van Rouij. If the pollution was so
‘entry’ of a substance others causing a ‘discharge’. It seems that this
diffuse that it could not be attributed to a particular person, this could
traditional division of discharge and entry needs to be re-thought in the
not be a discharge.
light of these cases. Indirect and incidental pollution is encompassed at
Held The European Court of Justice ruled in the first case that atmospheric pollution which lead to water pollution could amount to a discharge – the question was whether the pollution of the water could be said to be
least by EC law in the word ‘discharge’.
Birds and Habitats Directives and licences to shoot protected birds
attributable to an act of a person – the wood treatment process – the introduction of the List I or II substance could be direct or indirect. The indirectness of the pollution was not a major barrier where the pollution
Royal Society for the Protection of Birds v Secretary of State for Scotland (1999) The Times, 14 December
of waters was so proximate as to be regarded as foreseeable. As to the Nederhoff case, the European Court of Justice held that the placing of the timbers in the water could amount to the act which pollution was attributable to and therefore the discharge – not simply the leaching of the pollutant from the wood. Furthermore, the Dutch authorities had indicated that no retrospective grant of consent would be made as there were alternative solution and this approach was approved as being in accordance with the Directive’s permission for Member States to take more stringent measures than the Directive’s authorisation requirements. Finally, the ECJ concluded that, although List I substances without daughter directives in place were to be treated as a List I substance, in fact, the general elimination duty should be read
Facts This case was a judicial review of the Secretary of State’s decision to grant licences for the shooting of barnacle geese on the island of Islay. It was accepted by both sides that barnacle geese gathered on Islay in large numbers and could and did cause large amounts of crop damage. The relevant EC law is found in the Birds Directive (79/409/EEC) and the Habitats Directive (92/43/EC). This provided for the creation of special protection areas (SPAs) and for the taking of measures for protected species. Islay is an SPA and barnacle geese are a protected species. The Birds Directive allowed derogation from the general
as applying to all List I substances.
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requirement to protect listed species by licensing the shooting of those
shooting is the only satisfactory way of stopping the birds taking the
species for the prevention of crop damage. The Habitats Directive
crops.
amended the Birds Directive provisions relating to the protection of
The second and third points are in some ways related. Should
SPAs by requiring member states to avoid disturbance of SPAs in so far
the local impact on the site be considered and if so should there be an
as this could be done in relation to the Directive’s objectives.
environmental assessment? The court answers no to both questions.
Furthermore the Directive required that any plan or project affecting a
The problem with this approach is that it sees a protected habitat or
SPA must be subject to environmental assessment prior to its approval.
area in terms of a species – in this case, barnacle geese. Indeed,
The relevant EC law has been applied in the UK by the Wildlife and
barnacle geese may be the dominant or only reason why Islay is a SPA.
Countryside Act 1981 and the Conservation (Natural Habitats etc)
However, the point that has been missed is that Islay is an integrated
Regulations 1994.
ecosystem. Mess about with one part of the system and other parts will
The RSPB sought to review the decision to grant licences on the
respond – perhaps in ways that are not expected. So, culling barnacle
grounds that:
geese may have other impacts on the island – perhaps affecting
(a)
The Secretary of State was bound before granting any licence
predator species or attracting new birds to feed on the island’s lush
under the derogation in the Birds Directive to consider whether
grass. It is the failure to appreciate the significant difference between
there was any other ‘satisfactory solution’ and he had filed to do
habitat protection (which is what SPA status and Art 6 of the Habitats
so in relation to considering compensation to the farmers
Directive is all about) and species protection which flaws the decision
affected as an alternative.
in relation to these second and third grounds.
(b)
The Secretary of State’s approach was flawed because the advice he received was only concerned with the effect of the
Other cases in brief
cull on the total barnacle goose population not in relation to the local impact on Islay. (c)
Sentencing
The Secretary of State should have been bound to undertake an environmental assessment as the culling of geese should be
R v Moynihan [1999] Env LR 26
regarded as a plan or project. This was an appeal against sentence by John Moynihan who became
Held
infamous because of the activities of his company Green Environmental
In relation to the first issue, the court interpreted the Birds Directive as
quantities of clinical waste. The appellant had been sentenced to a total
referring to a satisfactory solution in relation to crop damage and not
of 27 months for waste related offences (two under s 33 of the EPA
concerning the wider issue of compensation. Any issue of
1990 and four related dishonesty offences including forgery of an
compensation was not concerning a solution of the crop damage issue
authorisation for a waste incinerator). He was also sentenced to three
but its economic consequences.
years’ imprisonment for various VAT offences. The Court of Appeal
Industries Ltd which was involved in the illegal disposal of large
The local impact vs total population effect ground was also
held that the total sentence of five years three months was excessive
dismissed by the court. Lord Johnstone held that he was satisfied that,
taking account of the appellant’s pleas and personal circumstances. A
‘... in assessing the question of significance by reference to the general
total sentence of four and half years was imposed on appeal by making
effect on the survival and reproduction of the population, the minister
the s 33 offences concurrent with the related dishonesty offences.
was applying the right test’. If a local basis had been used, this could produce ad hoc results and lose sight of the primary objective of the Directive.
Judicial review and Pt I of the EPA 1990
As to the environmental assessment ground, Lord Johnstone held that, when Art 6 of the Habitats Directive referred to a plan or project, this had, according to the Directive, to be a plan or project not directly related to the management of the site. The RSPB argued that this indeed was the case as it was not to do with the management of the site but was to do with managing the particular species of birds. This was also rejected on the basis that environmental assessment was concerned with extraneous development on the site unrelated to its special protected status.
R v Environment Agency ex p Petrus Oils Ltd [1999] Env LR 732 This was a judicial review (‘JR’) of a decision to issue a revocation notice under s 12 of the EPA 1990. It is clear from the report that there was a considerable history to this matter since it was first authorised by HMIP in 1995. Since then, numerous enforcement notices have been served and criminal proceedings taken. The judicial review raised two issues of general importance. First, whether there had been excessive delay by the applicant
Comment
in bringing the JR. The notice was issued on 1 September 1998. The
The Outer House of the Court of Session have perhaps adopted a rather
that it had not been clear until December that the Environment Agency
legalistic interpretative attitude to this case which does not necessarily
would proceed with the revocation notice and time should be taken to
sit easily with the broader more purposive approach which the
run from then. The court on the facts rejected this. On that basis, the JR
European Court of Justice has long pursued. To say that the satisfactory
was too late.
application for JR on 25 January 1999. The applicant sought to argue
solution to the goose problem does not include consideration of
The second point was therefore unnecessary to the appeal but is
compensation seems somewhat bizarre. The problem is loss of crops.
an issue of considerable importance – whether the existence (and
That essentially is an economic issue for the farmers concerned but the
indeed entering of an appeal) against the revocation notice meant that
Secretary of State has to regard it as a technical issue of whether
the decision to issue was not justiciable in judicial review proceedings
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as the applicant had an adequate alternative remedy. The applicant
could not extend to relocation but the concept of BPM was unlikely to
argued inadequacy on the basis that the appeal would be too slow –
be satisfied where a business expanded without counteracting measures
the court rejected this on the basis that JR was unlikely to be quicker
for any consequent nuisance.
and a date had been fixed for the appeal hearing – or that there were no costs for the winner in the appeal – ‘I would be very surprised if that as a factor standing on its own could ever lead the court to conclude that a statutory appeal procedure laid down by Parliament was an inadequate alternative remedy’ declared Dyson J. Finally, the applicant submitted that the appeal raised issues of law and that ought to be determined by a court. Although the court said there are such cases, for example, on construction of documents, this was not one of them – quite the opposite.
Offences under Pt I of the EPA 1990 LAPC offences – Dudley MBC v Henley Foundries (1999] ENDS 294
Monsanto v Tilly and Others (1999) The Times, 30 November This is an appeal by Monsanto to the Court of Appeal in respect of an action brought by the company against a number of GM crop protestors. In that action, Monsanto sought injunctions restraining the defendants from trespassing on certain land and from uprooting and damaging crops belonging to Monsanto. The defendant’s sought to argue that they had an arguable defence having been granted unconditional leave to pursue a defence based on necessity or acting to protect third parties in the public interest. The Court of Appeal allowed the appeal and held that the defences of necessity or acting to protect a third party were not available in this case because of an absence of
In Dudley v Henley Foundries (1999) ENDS 294, a prosecution was brought for breach of authorisation condition in respect of a metal
emergency and the presence of a public licensing authority.
foundry authorised under Pt I of the EPA. The authorisation included a
Part IIA of the EPA at last!
condition that all emissions other than steam should be free from
The contaminated land regime introduced by the Environment Act
persistent fume, mist and droplets. Operating problems with the
1995 but dating back in policy terms to at last 1989 is due to take effect
foundry resulted in persistent fumes being emitted which were
on 1 April 2000 after several years of delay and many rounds of
observed and video recorded. The stipendiary magistrate acquitted the
consultation. The statutory guidance and regulations were laid before
company on subsequent prosecution on the basis that when the system
Parliament in early February.
was malfunctioning it was operating outside the concept of a prescribed process. No offence could be established without showing a lack of
Statutory nuisance and sewage discharges
care by the operator. The High Court on appeal by the local authority held that the magistrate’s approach was incorrect and that lack of care was no part of the strict liability offence nor was there a defence of
R v Falmouth and Truro Port Health Authority ex p South West Water Ltd [2000] 3 All ER 306, CA
plant malfunction. The court also considered the meaning of persistent and concluded that emissions recorded for some 28 minutes were persistent.
Environmental regulation and insolvency
Facts The Falmouth and Truro Port Health Authority received complaints about a sewage outfall operated by the applicant to this judicial review, South West Water. They took the view that the impact of the discharge
Re Celtic Extraction and Re Bluestone Chemicals (1999) The Times, 6 August
amounted to a statutory nuisance under s 259 of the Public Health Act 1936. This states that statutory nuisances include ponds, pools, ditches, gutters or watercourses which are prejudicial to health or a nuisance.
The Court of Appeal has now decided (overruling Re Mineral Resources
The water affected by the sewage discharge was a large estuary area
[1999] 1 All ER 746) that waste management licences are property;
known as Carrick Roads. During the course of its investigations, the Port
onerous property; and capable of being disclaimed despite s 35 of the
Authority had some contact with South West Water and, in particular,
Environmental Protection Act 1990. This reflects the principle that the
had received a letter from South West Water requesting that any
property of insolvent should be divided between their unsecured
medical evidence be passed to the water company for its comment.
creditors. This is an important decision as it means that waste sites
The Port Authority did not respond to that letter or consult further with
where the operator goes bankrupt or into liquidation will usually have
South West Water before serving an abatement notice under Pt III of the
the licence disclaimed leaving the Agency struggling to find persons
Environmental Protection Act 1990. The abatement notice required the
responsible for the future condition, monitoring and restoration of the
abatement of the nuisance or that the discharge should cease within
site.
three months of service of the notice. The notice included a provision
Statutory nuisance – meaning of BPM Manley v New Forest DC [1999] Crim LR 976 and noted in Law Soc Gazette, 11 August 1999
that would mean that an appeal against the notice to the magistrates’ court would not suspend the notice. The effect of this was that even if an appeal was made and was ongoing the Water Company would have to comply with the notice or face criminal penalties for breaching an abatement notice. South West Water sought to challenge the validity of
This case concerned noise arising from dog kennels. An abatement
the notice not by appeal but by way of judicial review. They argued
notice was served and an appeal entered against the notice on the best
that the service of the notice was flawed by the failure to consult South
practicable means (BPM) ground. The Crown Court ruled on the appeal
West Water and that the notice itself was invalid either because Carrick
that BPM included relocation of the kennels to a non residential area.
Roads could not be a ‘watercourse’ or because the notice did not
The Queen’s Bench Division allowed the appeal, saying that BPM
specify the works needed to remove the nuisance. Harrison J in the
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Divisional Court upheld the judicial review and quashed the notice
law arising, and the apparent strength of the applicant’s substantive
([1999] Env LR 833). The Port Authority appealed to the Court of
challenge. The issues in the first point relating to consultation would not
Appeal.
have been suitable for determination by judicial review considering the volume of evidence required for determination. However, judicial
Held The Court of Appeal dealt with the three issues (consultation; works specification; meaning of watercourse) separately. On the consultation issue, the arguments were that the letter and/or South West Water’s
review would have been an appropriate forum for the legal points concerning specification of works and the meaning of watercourse.
Comment
position as a statutory water undertaker gave rise to a legitimate
This is an interesting and unusual case. Statutory nuisance is not
expectation that consultation should have taken place before the formal
normally seen as a means of addressing issues of water pollution or
legal step of serving the notice. The Court of Appeal held that, although
discharge – these are subject to Environment Agency regulation under
consultation would often be appropriate, there was no duty to consult
the Water Resources Act 1991. However, where the water pollution
the alleged perpetrator before serving an abatement notice. Moreover,
leads to a matter covered the list of statutory nuisances in Pt III of the
South West Water was given no legitimate expectation of consultation
Environmental Protection Act 1990 (most notably including noise,
by the April letter. Although there was a strong case for consultation,
smell, premises and accumulations or deposits which are prejudicial to
the Port Authority was entitled as a matter of law to proceed and leave
health or a nuisance), then a local authority may take action. For
the Water Company to its statutory right of appeal. An abatement
example, in R v Carrick DC ex p Shelley, the Divisional Court quashed
notice, designed to bring an end to a statutory nuisance, could not
a decision of Carrick District Council to not issue an abatement notice
properly be defeated by a claim of non-consultation, certainly in a case
in respect of sewage debris washing up on a beach from a nearby
where no consultation was ever promised.
sewage outfall. Indeed, where a local authority is satisfied a matter
On the second issue of specification of works, the Court of
covered by Pt III of the Environmental Protection Act 1990 exists, there
Appeal held that, in all cases, the local authority could, if it wished,
is a statutory duty to serve an abatement notice (s 80). This case is of
leave the choice of means of abatement to the perpetrator of the
course different from the Carrick decision. Obviously, it was a
nuisance. It was not necessary to set out any works – instead a
challenge this time to the decision to issue the notice rather than the
requirement for removal of the nuisance was adequate. Indeed, there
failure to act. More fundamentally, the alleged nuisance lay in the state
were compelling reasons here for leaving the decision to South West
of the water itself not some consequential problem such as the debris in
Water as to how the nuisance should be abated. The statutory
Carrick. The rather arcane provisions of s 259 of the Public Health Act
responsibility for discharging sewage was vested in South West Water
1936 with their 19th century origins caught the Port Health Authority
and any substitute discharge (including a return to the previous outfalls)
out here. Carrick Roads is a large expanse of coastal tidal water into
required compliance with the Environment Agency’s consent under the
which several rivers run (most notably the Fal) – however, is it really a
Water Resources Act 1991. The notice was therefore not invalid for
watercourse? This implies, as Hale LJ said, a defined course with a
failing to specify the abatement works. However, Pt III of the
defined flow. It seems very unlikely when the words were passed by
Environmental Protection Act 1990 makes it clear that a local authority
Parliament and coastal water discharges were largely unregulated that it
may chose to specify the works required. Where this was done, then
was intended to cover estuarine expanses such as Carrick Roads. Two
the works must be specified with sufficient clarity.
points arise from this. First, does that justify interpreting the legislation
This meant that the appeal would turn on the third point. The
in this rather restrictive way or should modern day environmental
notice was not invalidated by virtue of lack of consultation or its
values and concerns be taken into account? Secondly, it does of course
drafting. However, it could only be a valid notice if it related to a matter
mean that where a watercourse (for example, a river) is seriously
covered by the Environmental Protection Act 1990. In respect of water
affected by a discharge (even a one lawfully made under discharge
pollution, this is only possible under s 259 of the Public Health Act
consent), then the statutory nuisance remedy may be available. As the
1936. This, in turn, would only apply where the water affected was a
Water Resources Act 1991 and the Environment Agency now have
pond, pool, ditch, gutter or watercourse. Hale LJ analysed the history of
control over these matters, you might justifiably ask why it matters
the legislation and the existence of modern legislation specifically
whether it is a statutory nuisance to pollute water. The answer lies in
designed to cover coastal and estuarine discharges (Water Resources
the speed and simplicity of the statutory nuisance system and the fact
Act 1991). She held that the term watercourse could not, in this
that aggrieved individuals may take direct action to seek to have the
context, encompass open sea or a large estuarine area.
nuisance abated.
Finally, the court dealt with the issue of whether judicial review
On the other two points – consultation and specification of
was an appropriate means of making these challenges to the abatement
works – both decisions will be welcomed by local authorities. The
notice. The argument was that, under the Environmental Protection Act
consultation issue is important. There are no statutory provisions
1990, there was an adequate alternative remedy in the form of the
relating to consultation before serving an abatement notice in Pt III of
statutory appeal process.
the Environmental Protection Act 1990. In many cases in recent years,
The Court of Appeal held that, if the applicant had a statutory
statutes have included formal requirements for consultation (see, for
right of appeal, permission to bring a judicial review should only
example, Pt IIA of the Environmental Protection Act 1990 or the
exceptionally be given. This was the case especially in cases
provisions on works notices in ss 161A–161D of the Water Resources
concerning public safety. The judge should however have regard to all
Act 1991). In their absence, only a clear undertaking to consult should
relevant circumstances, which would include the comparative speed,
give rise to a legitimate expectation of consultation. Otherwise, local
expense and finality of the alternative processes, the need and scope for
authorities and the Environment Agency may feel inhibited in
fact finding, the desirability of an authoritative ruling on any point of
exercising their powers in the public interest by the spectre of judicial
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review hanging over them. The specification of works point is rather a
the vessel was a direct consequence of the manner in which the
technical issue. Yet, it is also by far and away the most significant part
authority managed the port and the systems used by the authority. The
of the Falmouth judgment. For several years, the Divisional Court and
judge when he sentenced took into account the fact that liability was
Court of Appeal have struggled with the words of s 80 of the
strict but also noted that the surrounding circumstances gave cause for
Environmental Protection Act 1990. Do they require abatement notices
concern for a number of reasons – the training and experience of pilots,
to specify how to remove a statutory nuisance or is a simple
ship categorisation for piloting purposes, the policy on correct path and
requirement that the nuisance should be removed sufficient? See, for
tide entry times for larger vessels. The responsibilities of the Port
example, Sterling Homes v Birmingham City Council (1995) Env LR
Authority had called for the highest standards which it had not
121; Budd v Colchester Borough Council (1997) Env LR 128; Kirklees
delivered – therefore, the Crown Court judge imposed a substantial
Metropolitan Council v Field (1998) Env LR 337; Surrey Free Inns plc v
penalty to reflect these shortcomings and the damage caused to an area
Gosport Borough Council (1999) Env LR 1; and Budd v Colchester
of environmental and amenity importance. The Port Authority was a
Borough Council CA(1999) Env LR 739. This is a practical drafting issue
public trust (not a profit making company) and its financial resources
faced every day by environmental health officers seeking to use Pt III of
were assessed and considered to be relevant by the Crown Court judge
the Environmental Protection Act 1990. This is the most used piece of
in setting the fine at £4 million – a record for environmental offences.
environmental legislation and is used most frequently to deal with the
Unusually for a Crown Court guilty plea, the judges sentence and
environmental issue which generates most public complaints, noise. It
reasoning are reported at [1999] 1 Lloyd’s Rep 673.
is clear that the Act empowers local authorities to set out the works they
Milford Haven Port Authority appealed against the fine of £4
require (for example, particular sound proofing) but does it ever require
million (in addition to paying £825,000 towards the costs of the
them to do so?
prosecution) imposed at Cardiff Crown Court to the Court of Appeal.
What lies at the heart of this issue are three essentially practical concerns. First, the removal of a nuisance may be achieved in several ways – some may involve particular works or steps – others may not. Take noise from barking dogs – this may be abated by sound proofing, removing or reducing the number of dogs or training the dogs not to bark. Secondly, the choice of exactly how to deal with the problem may be beyond the expertise of the local authority or at least best left to the person who has to comply with the notice (in the example the person who owns the dogs). They can chose the best method given the particular circumstances. Finally, there are rights of appeal against abatement notices and local authorities are rightly concerned that where works are specified appeals may be brought on the basis that those works are not appropriate. This not only slows down dealing with the nuisance in many cases as the appeal may take weeks or months to resolve but also exposes the local authority to risks that costs may be awarded against them in the appeal. For these reasons, the decision to overrule the Kirklees case and leave the whole issue of specification of works to local authorities is to be welcomed.
Sentencing for environmental offences R v Milford Haven Port Authority (2000) unreported, 16 March, CA
Held The court considered that the fine imposed by the judge at the Crown Court was manifestly excessive and should be reduced to £750,000. There were a number of reasons for this reduction. First, the judge had been right in assessing this case as a very serious one and one which fell high on the 3 scale of seriousness. However, the judge had not given proper weight to the agreed basis on which the guilty plea had been accepted, had not given full credit for the guilty plea in itself and had not given sufficient weight to the impact of the fine on the ability of the company to carry out its public functions. The court also concluded (although largely on the basis of material which was not before the judge) that the judge took a rosy view of the port authority’s financial position and prospects. An appropriate fine should recognise the seriousness of such disasters and the need to ensure the highest levels of vigilance. But, it should not be such as to cripple the port authority’s business and blight the economy of Pembrokeshire. An appropriate fine was one of £750,000. The Court of Appeal also referred to the advice published by the Sentencing Advisory Panel on environmental offences. It concluded, pursuant to its duties under s 80(2) of the Crime and Disorder Act 1998 that it was not necessary to frame guidelines for sentencing for environmental offences. Instead courts should have regard to a range of factors highlighted by the Court of Appeal in relation to health and
Facts
safety offences in R v Howe & Son (Engineers) Ltd [1999] 2 All ER.
In February 1996, the oil tanker Sea Empress went aground on rocks
fell short of his duty; whether death or serious injury resulted from the
just outside Milford Haven Port. At the time, the ship was under the
breach; the deliberate breaching of a duty to maximise profit; the
control of a Port Authority pilot. In the ensuing days, a total of 76,000
degree of risk and danger created by the offence; the extent of the
tonnes of oil was spilled causing serious environmental damage to the
breach; evidence of repetition or failure to heed warnings; the financial
Pembrokeshire coastline and National Park. The Milford Haven Port
profit (if any) accruing to the offender; admission of guilt and plea of
Authority were prosecuted for causing the entry of oil into the coastal
guilty at an early opportunity; the taking of prompt and effective
waters – a water pollution offence under s 85 of the Water Resources
measures to rectify any failures; and a good record of compliance with
Act 1991. The Port Authority had pleaded guilty to the offence at
the law. Fines had to reflect the gravity of the offence and the means of
Cardiff Crown Court. It had not accepted that it was at fault but pleaded
the offender.
These factors: how far short of the appropriate standard the defendant
guilty on the basis of the strict nature of liability under s 85. However, the Authority pleaded guilty because the presence of the pilot on board
Comment
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Two aspects of this decision are worthy of attention. First, the particular
water illegally; breaches of the Producer Responsibility (Packaging
reduction of the fine from £4 million to £750,000 and, secondly the
Waste) Regulations 1997. Its interesting report can be found at
broader issue of sentencing guidelines for environmental offences. On
www.sentencing-advisory-panel.gov.uk. The Panel noted that many
the first issue, this reduction has reduced the record fine for an
regarded sentences for environmental offences as having been too low
environmental offence in this country to below the previous highest
and considered that guidelines from the Court of Appeal would be very.
(NRA v Shell [1990] Water Law 213) of £1 million. Of course, where a
The Panel sets out a series of aggravating and mitigating factors and
fine is pitched is very much a matter of personal judgment. This was a
considerations on the appropriate types of sentence. It also encourages
dreadful large scale pollution incident in a particularly sensitive
the use of compensation orders. It is likely that the advice will be
location. On the other hand, the plea was on the basis of strict liability
referred to in submissions made on sentence.
without fault and the judge made it clear he considered there were
Of course, fines are not the only option for sentencing for
areas where the defendant was seriously at fault. As to whether the fine
environmental offences. Where individuals are criminally responsible
was so high that it might affect the viability of the Port Authority who
or directors may have criminal liability imposed on them (see s 159 of
can say? Perhaps £4 million was high but fines of this magnitude, and
the Environmental Protection Act 1990), imprisonment is often an
in worse cases higher, will need to be seen to be delivered by the courts
option (most serious environmental crime is imprisonable). An example
if environmental protection is to be taken seriously by big business. The
of the Court of Appeal considering imprisonment for environmental
courts have fined a number of companies very large sums recently for
offences is John Moynihan’s appeal. He became infamous because of
health and safety offences and this needs to be reflected in
the activities of his company Green Environmental Industries Ltd, which
environmental law as well.
was involved in the illegal disposal of large quantities of clinical waste
The average fines imposed for environmental offences remain
and recently appealed to the Court of Appeal against sentence (R v
alarmingly low (these vary between offences but remains in the low
Moynihan [1999] Env LR D26). He had been sentenced to a total of 27
thousands at most) and headline fines matter as much to the perception
months for waste related offences (two under s 33 of the EPA and four
of these offences as averages.
related dishonesty offences including forgery of an authorisation for a
The Court of Appeal was expected to take this opportunity to
waste incinerator). He was also sentenced to three years’ imprisonment
comment on the Sentencing Advisory Panel advice on environmental
for various VAT offences. The Court of Appeal held that the total
offences. This was published on 1 March 2000 and covers a number of
sentence of five years three months was excessive taking account of the
environmental offences – IPC and APC processes carried on without
appellant’s pleas and personal circumstances. A total sentence of four
authorisation or in breach of authorisation conditions; depositing,
and half years was imposed on appeal by making the s 33 offences
recovering or disposing of waste without a waste management licence
concurrent with the related dishonesty offences.
or in breach of conditions; polluting controlled waters; abstracting
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Article Formalities under s 53(1)(c) of the Law of Property Act 1925..................................107
Case notes Heinl and Others v Jyske Bank (Gibraltar) Ltd..........................................................110 Abrahams v Trustee in Bankruptcy of Abrahams......................................................110 Burton and Another v FX Music; Taube v FX Music ................................................111 Artistic Upholstery Ltd v Art Forma (Furniture) Ltd ..................................................112 X v A and Others ......................................................................................................112 Barclays Bank plc v Boulter and Boulter ..................................................................112 Fuller v Evans and Others ........................................................................................113 Barclays Bank v Coleman and Another....................................................................113 AG v Blake ..............................................................................................................114 Southwood v Attorney General................................................................................115 Foskett v McKeown and Others ..............................................................................116 Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele ..........................................................................................................117
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Formalities under s 53(1)(c) of the Law of Property Act 1925 by MA Ramjohn, Principal Lecturer, Thames Valley University A topic which is fundamental to the law of trusts and a favourite with examiners is the formalities required to be complied with under s 53(1)(c) of the Law of Property Act 1925. Identification From the point of view of the student, the first task is to identify whether a ‘s 53(1)(c) issue’ is involved in the question asked by the examiner. The simplest way to be aware of this issue, with regards to express trusts, is to examine the circumstances to determine whether the beneficiary under a trust has attempted to dispose of his interest verbally or by conduct, that is, without writing: for example, B, a beneficiary under a trust, verbally declares that henceforth he will hold all his interest upon trust for C absolutely. This scenario certainly concerns s 53(1)(c) and, subject to any facts to the contrary, B’s purported declaration of trust is void. The purpose of this article is to simplify the task of students in recognising and analysing issues that involve s 53(1)(c) requirements. It is incumbent on students to read and follow the judgments of the leading cases. Section 53(1)(c) (substantially, but not completely, reflects the terms of s 9 of the Statute of Frauds 1677) provides as follows: A disposition of an equitable or trust subsisting at the time of disposition must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will. [Section 9 of the Statute of Frauds 1677, before its repeal, provided: ... all grants and assignments of any trust or confidence shall be in writing signed by the party granting or assigning the same or by such last will or devise or else shall be utterly void and of no effect.]
Rationale of the provision The policy underlying the enactment: • is to prevent fraud by prohibiting oral hidden transfers of equitable •
interests under trusts; and to assist trustees by enabling them to identify the whereabouts of the equitable interest subsisting under a trust, see Lord Upjohn in
provision is applicable to the interest of a beneficiary under a subsisting trust. The sub-section is not applicable to the original creation of a trust but is activated only when a beneficiary under a trust seeks to dispose of his interest, for example, S, a settlor, transfers property to the trustees, A and B to hold upon trust for C absolutely. Thus, A and B hold the legal title to property and C enjoys the equitable interest. The formalities, other than under s 53(1)(c), that S will need to comply with, if any, will depend on the type of property concerned. But, this arrangement does not involve s 53(1)(c). If C wishes to dispose of his equitable interest (subsisting), he is required to comply with the statutory provision. A subsisting interest may exist under any type of trust, express, resulting, constructive or statutory.
Land and personalty The sub-section is applicable to subsisting equitable interests in realty or personalty. The sub-section contains no restriction as to the type of property. Indeed, the provision focuses on the type of interest and not the type of property in which that interest is enjoyed.
Writing Writing may take a variety of forms including video recordings, photographs and audio tapes. The test is whether a permanent form of representation exists of the transfer of the relevant interest. Section 13 of the Civil Evidence Act 1995 enacts that a ‘document’ means ‘anything in which information of any description is recorded’. A ‘statement’ means ‘any representation of fact or opinion, however made’.
Signature The signature of the disponer or his agent may take any form which endorses the document for example, thumbprints, initials and perhaps the disponer’s voice on a tape recording.
Vandervell v IRC [1967] 2 AC 291.
Agent’s signature Effect of non-compliance The effect of non-compliance with this provision is that the purported disposition is void. The wording of the statutory provision is mandatory in nature. The operative words are ‘must be in writing’.
Subsisting equitable interest An essential restriction on the operation of the sub-section is that it is applicable only to subsisting equitable interests. In other words, the
The section authorises the signature of an agent provided the agent was lawfully appointed in writing.
Disposition The key feature of s 53(1)(c) is the meaning of the term ‘disposition’. This has not been defined in the statute. But, the term ‘conveyance’ has been defined in s 205(1)(ii) of the Law of Property Act as including a disposition. The sub-section provides as follows: ‘Conveyance’ includes a mortgage, charge, lease, assent,
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vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will; ‘convey’ has a corresponding meaning; and ‘disposition’ includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and ‘dispose of’ has a corresponding meaning. Romer LJ, in Timpson’s Executors v Yerbury [1936] 1 KB 645, described a disposition thus: ... the equitable interest in property in the hands of the trustee can be disposed of by the person entitled to it in favour of a third party in any one of four different ways.
trust, it ought not to be a defence that the transfer of the equitable interest has not been reduced into writing. The relationship between s 53(1)(c) and s 53(2) was examined in Oughtred v IRC [1960] AC 206. In this case, the House of Lords decided that a specifically enforceable contract between a mother and son to exchange their interests in shares created a constructive trust when the mother disposed of her interest to her son before the son reciprocated. Despite the trust, a majority of the Law Lords decided that the document was liable to stamp duty. But only three Law Lords considered the relationship between s 53(1)(c) and 53(2). It is believed that the opinion of Lord Denning on this issue is no longer tenable. Per Lord Denning:
The person entitled to it:
I do not think the oral agreement was effective to transfer
(1)
can assign it to the third party directly;
Peter’s reversionary interest to his mother. I should have
(2)
can direct the trustees to hold the property in trust
thought that the wording of s 53(1)(c) of the Law of
for the third party;
Property Act 1925 clearly made a writing necessary to
can contract for valuable consideration to assign
effect a transfer: and s 53 (2) does not do away with that
(3)
the equitable interest to him; or (4)
can declare himself to be a trustee for him of such
interest. In Grey v IRC [1960] AC 1, the House of Lords decided that an oral direction by an equitable owner to the trustees of a trust fund to hold the property upon trust for another was a purported disposition and void for non-compliance with s 53(1)(c). Lord Simonds: If the word disposition is given its natural meaning, it
necessity. Per Lord Cohen (dissenting): The appellant as a result of what was done on June 26 was, as the release recognised, absolutely entitled to the settled shares, but that was not because the equitable interest was transferred to or vested in her by the transfer but because Peter, having become a constructive trustee for her of his equitable interest, could not, after his
cannot, I think, be denied that a direction given by the
nominees had received the consideration shares, as they
beneficiary whereby the beneficial interest in the shares
did on 26 June 1956, dispute the appellant’s title to the
theretofore vested in another or others is a disposition.
In Vandervell v IRC [1967] 2 AC 291, the House of Lords decided that s 53(1)(c) has no application where the equitable owner under a subsisting trust directs the legal owner to transfer his title to a third party and, in the same transaction, the equitable owner, without writing, transfers his interest to the same third party. In other words, the effect of the transaction is to terminate the trust by uniting both the legal and equitable interests in the hands of the third party. Clearly, such a transaction is outside the mischief of s 53(1)(c). There can be no fraudulent dealing with the equitable interest simply because it is now incorporated with the legal title. The trustees do not need to identify the
settled shares. This appears to be the language of an estoppel. Lord Radcliffe (dissenting): On 18 June 1956, the son owned an equitable reversionary interest in the settled shares: by his oral agreement of that date, he created in his mother an equitable interest in her reversion, since the subject matter of the agreement was property of which specific performance would normally be decreed by the court. He thus became a trustee for her of that interest sub modo: having regard to sub-s (2) of s 53 of the Law of
movement of the equitable interest because this is united with the legal title and, in any event, the position of the trustee is redundant because the trust no longer subsists. Lord Upjohn:
Property Act 1925, sub-s (1) of that section did not
... when the beneficial owner owns the whole beneficial
shares which were the consideration for her acquisition of
estate and is in a position to give directions to his bare
his equitable interest: upon this transfer he became in a
trustee with regard to the legal as well as the equitable
full sense and without more a trustee of his interest for
estate there can be no possible ground for invoking the
her. She was the effective owner of all outstanding
section [s 53(1)(c)] where the beneficial owner wants to
equitable interests. It was thus correct to recite in the deed
deal with the legal estate as well as the equitable estate.
of release to the trustees of the settlement, which was to
operate to prevent that trusteeship arising by operation of law. On 26 June, Mrs Oughtred transferred to her son the
wind up their trust, that the trust fund was by then held
Section 53(2) of the LPA 1925 Section 53(2)(re-enacting s 8 of the Statute of Frauds, 1677) provides as follows: This section shall not affect the creation or operation of resulting, implied or constructive trust. The issue which is considered in this section is how far does s 53(2)
restrict the operation of s 53(1)(c)? The groundswell of opinion is to the effect that the resulting and constructive trusts referred to in s 53(2) are created by the courts. Accordingly, a court will not contradict itself by requiring a disposition under such trust (constructive) to be in writing. Either the court feels that the circumstances of the case warrant the imposition of a trust or it does not. If the court favours the creation of a
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upon trust for her absolutely. There was, in fact, no equity to the shares that could be asserted against her, and it was open to her, if she so wished, to let the matter rest without calling for a written assignment from her son. In Re Holt’s Settlement [1968] 1 All ER 470, Megarry J adopted Lord Radcliffe’s judgment in Oughtred v IRC in the context of scheme under the Variation of Trusts Act 1958. Per Megarry J: Mr Millett for the tenant for life, provided ... [a] means of escape from s 53(1)(c) in his helpful reply. Where, as here, the arrangement consists of an agreement made for valuable consideration, and that agreement is specifically enforceable, then the beneficial interests pass to the respective purchasers on the making of the agreement.
E Q U I T Y Those interests pass by virtue of the species of constructive trust made familiar by contracts for the sale of land, whereunder the vendor becomes a constructive trustee for the purchaser as soon as the contract is made ... s 53(2), he continued, provides that: ‘This section does not affect the creation or operation of resulting, implied or constructive trusts.’ Accordingly, because the trust was constructive, s 53(1)(c) was excluded ... It seems to me that there is considerable force in this argument in cases where the agreement is specifically enforceable, and in its essentials I accept it ... In Chinn v Collins [1981] AC 533, in the context of a tax avoidance scheme, the House of Lords decided that a specifically enforceable
contract was immaterial in order to effect a transfer of an equitable interest. Lord Wilberforce stated: The legal title to the shares was at all times vested in a nominee and dealings related to the equitable interest in these required no formality. As soon as there was an agreement for their sale accompanied or followed by payment of the price, the equitable title passed at once to the purchaser and all that was needed to perfect his title was notice to the trustees or the nominee, which notice both had at all material times. In the controversial case, Re Vandervell Trusts (No 2) [1974] Ch 269, the Court of Appeal decided, inter alia, that the doctrine of equitable estoppel is an exception to s 53(1)(c). Per Lord Denning MR: If he [Mr Vandervell] had lived, and not died, he could not have claimed it back. He could not be heard to say that he did not intend the children’s trust to have it. Even a court of equity would not allow him to do anything so inequitable and unjust. In addition, s 2(5) of the Law of Property (Miscellaneous Provisions) Act 1989 exempts ‘implied resulting and constructive trusts’ from the requirement that a contract for the sale of land or an interest in land must be in writing. More recently, the Court of Appeal in Neville v Wilson [1996] 3 WLR 460 reviewed the diverse opinions delivered in Oughtred v IRC
and endorsed Lord Radcliffe’s view that s 53(2) restricted the operation of s 53(1)(c). Nourse LJ in Neville v Wilson, after referring to Oughtred v IRC,
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53(1)(c): for example, B, a beneficiary, who enjoys an absolute interest under a trust declares himself a trustee of the remainder interest in favour of C. It is arguable that since B has active duties to perform, the sub-trust created by B amounts to the creation of a new trust. Accordingly, the policy of enacting s 53(1)(c) is not relevant and such a disposition is outside of the provision (see Grainge v Wilberforce (1889) 5 TLR 436; Re Lashmar [1891] 1 Ch 258; and Underhill and Hayton, Law of Trusts and Trustees). On the other hand, Lewin, Trusts and Trustees, and Brian Green, in an article entitled ‘Grey, Oughtred and Vandervell: a contextual reappraisal’ (1984) 47 MLR 385, assert that a self-declaration of trust, whether as to part of the equitable interest or the entirety, is a disposition within s 53(1)(c) and requires writing.
Disclaimers Disclaimers are exempt from s 53(1)(c), despite being included in the definition of a ‘conveyance’ within s 205(1)(ii). A disclaimer involves a conscious decision on the part of the individual to abandon his interest in the property. There is no positive intention on his part to transfer the interest to any specific person. The effect of the disclaimer is that the property is transferred or acquired by another, but this is distinct from a conscious decision to dispose of the property or interest to another (see Re Paradise Motor Co [1968] 1 WLR 1125). Per Dankwerts LJ, a disclaimer: ... operates by way of avoidance and not by way of disposition. For the general aspects of disclaimer, we refer briefly to the discussion in Re Stratton’s Disclaimer [1958] Ch 42. A surrender of an equitable interest, on the other hand, would appear to be a disposition within s 53(1)(c), despite academic commentary to the contrary. The argument, which is not very convincing, is that a surrender involves an extinguishment of an interest which is distinct from a disposition. If this is true, it would amount to a relatively simple exercise in avoiding the rigour of s 53(1)(c).
Nominations Nominations by staff pension fund holders of the persons who will become entitled to benefits under a pension fund after the deaths of the
Why then should sub-s (2) not apply? No convincing
pension holders are not dispositions within s 53(1)(c). Per Megarry J in Re Danish Bacon Co Ltd Staff Pension Fund [1971] 1 WLR 248, the question is thus: ... whether an instrument with this elective, contingent
reason was suggested in argument and none has occurred
and defeasible quality, which takes effect only on the
to us since. Moreover, to deny its application in this case
death of the person signing it, can fairly be said to be ‘a
would be to restrict the effect of general words when no
disposition of an equitable interest or trust subsisting at
restriction is called for, and to lay the ground for fine
the time of the disposition’. Mr Ferris puts much emphasis
distinctions in the future. With all the respect that is due
on the word ‘subsisting’: however wide the word
to those who have thought to the contrary, we hold that
‘disposition’ might be in its meaning, there was no
sub-s (2) applies to an agreement such that we have in
disposition of a subsisting equity, he said, I should
this case.
hesitate to describe an instrument which has a mere
said:
possibility of becoming a ‘disposition’ as being in itself a
Self-declaration of trust A disposition may be effected by means of a self-declaration. This method was referred to by Romer LJ in the Yerbury decision (see above). Thus, B, a beneficiary, may declare himself a trustee of his entire interest in favour of C. This arrangement is valid only if it is reduced into writing.
disposition ab initio; and I agree that the word, ‘subsisting’ also seems to point against the nomination falling within s 53(1)(c) ... I very much doubt whether the nomination falls within s 53(1)(c).
However, it is debatable whether a self-declaration of trust of part of a subsisting equitable interest amounts to a disposition within s
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Case notes by MA Ramjohn, Principal Lecturer in Law, Thames Valley University The standard of proof of dishonesty Heinl and Others v Jyske Bank (Gibraltar) Ltd (1999) The Times, 28 September, CA The standard of proof on a claim against a defendant as constructive trustee for dishonestly assisting breaches of fiduciary duty, exceeds a balance of probabilities but is not as high as the criminal standard of proof.
Facts Between 1989 and 1991, Mr Spjeldnaes (Mr S), the managing director of Jyske Bank (Gibraltar) Ltd (the bank), in fraudulent breach of his fiduciary duty to the bank, caused it to pay out £71.5m to companies which were the creatures of Mr S and his associates, principally Mr Metcalf (Mr M). The payments were made from time to time in transactions which took the form of loans to the various companies. The claims were made against 17 defendants. The principal claims against those, other than Mr S, were made under the ‘knowing assistance or knowing receipt’ heads of constructive trusts. The basis of the bank’s claim against Mr Heinl (Mr H), the appellant, was that Mr S had misappropriated more than £4.5m of the bank’s money which were paid in to accounts which Mr H controlled, and that the latter had knowingly assisted in the misapplication of these funds. The hearing lasted 89 days. The judge handed down a judgment of 363 pages and held inter alia that Mr H and a number of companies controlled by him were liable for knowingly assisting Mr S in the fraudulent extraction and money laundering operations of the bank’s funds. Mr H conceded that the moneys had come under his control and that he had assisted Mr S in the frauds by dealing with the funds in accordance with instructions from Mr S and Mr M. He appealed against the judge’s decision on the ground that that he (Mr H) did not act dishonestly or with the requisite degree of knowledge. Mr H claimed that he had been informed and believed that the moneys were profits made by Mr M from property dealings in Spain.
Held Allowing the appeal, the court unanimously decided that, on the facts, the claimant failed to prove that Mr H knew that the funds he was dealing with originated from frauds perpetrated by Mr S on the bank. Thus, Mr H did not act dishonestly. The court relied on the test of ‘accessory liability’ laid down by Lord Nicholls in Royal Brunei Airlines v Tan [1995] 2 AC 378. A defendant will be judged to have acted dishonestly if he rendered assistance when in all the circumstances an honest man, having the defendant’s knowledge, would not have done so, either at all or without making further inquiry or taking some other steps to satisfy himself that there was no breach of trust. Dishonesty is to be equated with conscious impropriety. In analysing Mr H’s state of knowledge so as to ascertain whether he rendered dishonest assistance, the test to be applied was
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not the objective principle of whether the defendant ought as a reasonable businessman to have appreciated that the funds had been fraudulently procured from the bank, but a subjective inquiry of whether the defendant had appreciated that the funds had been so procured. Carelessness is not dishonesty. In order to make a defendant accountable on the basis of accessory liability, the standard of proof of dishonesty involved a high level of probability, although not as high as the criminal standard of proof.
Comment On the question of dishonesty, the trial judge reasoned that it was incumbent on the claimant to establish that Mr H had the requisite degree of knowledge. This was reduced into two propositions. First, that Mr H knew that all or any part of the £4.3m had originated from moneys advanced by the bank. Secondly, at the time of the receipt and disposition of the funds, Mr H knew that Mr S had a personal interest in the assets and businesses into which the money was to be put. On the basis of knowledge of these two facts the judge concluded that Mr H was an intelligent and experienced businessman and was put on inquiry that Mr S was acting in breach of his fiduciary duty. Accordingly, if he entered into transactions without investigating their probity, he would necessarily have been acting dishonestly. The Court of Appeal decided that the judge excluded from his consideration the question whether there might be other evidence which would displace an inference of dishonesty. On analysis of the evidence the Court of Appeal decided that there was insufficient evidence to support a finding of dishonesty on the part of Mr H. Given what Mr H knew of Mr M’s operations, it was not obvious to him (Mr H) that any funds under the control of Mr M probably originated from the bank. Nor was it obvious that because the funds were going into the accounts of companies under the control of Mr M and Mr S that meant that those funds were probably fraudulently procured. A high level of probability of dishonesty was required to be proved in order to succeed on a claim of dishonestly assisting in a fraudulent breach of duties.
Resulting trust of lottery winnings Abrahams v Trustee in Bankruptcy of Abrahams (1999) The Times, 26 July, HC A presumption of a resulting trust arises in respect of a lottery syndicate winnings.
Facts In February 1996, Mr and Mrs Abrahams joined a National Lottery syndicate at their local public house. Each person became a member and each member’s weekly contribution was £1. Membership was restricted to 15 in total. There were no written rules of the syndicate nor any formal meetings of the members. On 13 October 1996, Mrs A left her husband. Mrs A worked in the pub. Mr A became a less frequent visitor to the pub. At the early stage after their parting, Mrs A continued to pay £1 a week as her membership of the syndicate and a further £1 per week for her husband. The effect was that Mr A’s name remained on the list of members. Occasionally, Mrs A was able to recover arrears of contributions paid by her on behalf of her husband. Subsequently, after a row with Mrs A, Mr A refused to repay Mrs A for subscriptions paid on his behalf. Nevertheless, Mrs A continued to make £2 per week contributions for herself and husband. There was no secrecy about the
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amount and extent of her contribution and no syndicate member objected. Mrs A intended that, if there should be any substantial wins,
the award was made. The applicant had a hope that his or her claim may be successful. The applicant did not have a right, but only a
she would be entitled to two shares rather than one. The court accepted the view of some members of the syndicate that there were no rules governing the members, except that the weekly contribution was £1 and the maximum number of members allowed was 15.
power, to claim an award from the Compensation Board. Having established the presumption, the court decided that there was little or no evidence to rebut it. Mrs A subscribed £2 with a view to receiving two one-fifteenth shares of any substantial winnings
Mr A was declared bankrupt on 25 March 1997. On 10 May 1997, the syndicate won £3,632,327. Each one-fifteenth share was worth £242,155. Mrs A claimed two one-fifteenth shares and Mr A’s trustee in bankruptcy claimed one-fifteenth share of the winnings. The
for herself. Mr A had no reason to believe that she was subscribing for his benefit; he had been asked to pay but had refused. He had not asserted before the substantial win that he was still a member or that he believed that Mrs A was contributing for his benefit. Nor had Mr A
syndicate took legal advice and paid out 14 of the one-fifteenth shares to its members, including a one-fifteenth share to Mrs A. The remaining one-fifteenth share in dispute was paid into an interest bearing account in the joint names of Mrs A and the solicitors of the trustee in
forbidden his wife to subscribe in his name. The court reserved opinion on the situation that could arise in the future that the ticket holder knowingly breaches a clear rule of the syndicate.
bankruptcy of Mr A. That share at the time of the proceedings was worth £265,000. The other syndicate members did not lay a claim to this share, the dispute was restricted to ownership of this share as between Mrs A and the trustee in bankruptcy of Mr A. Counsel for Mrs A argued that, since she contributed the additional one-fifteenth share in the name of Mr A (a nominee), she should be entitled to the share. In addition, counsel contended that Mrs A was entitled to rely on the unrebutted presumption of resulting trust. Counsel for the trustee in bankruptcy argued that there was no resulting trust as there was no purchase. The contention was that no property was acquired by Mrs A’s contributions to the syndicate but she obtained only a hope of winning, which was not property subject to a trust, relying on Re Campbell [1996] 2 All ER 537. In addition, relying on Owen v Tate [1976] 1 QB 402, counsel for the trustee in bankruptcy argued that the voluntary assumption of an obligation or payment for the benefit of another does not entitle the payor to claim an indemnity from the person enjoying the benefit.
Held The court decided the case in Mrs A’s favour. Each weekly contribution by her constituted a present right to have any winnings received by the syndicate duly administered in accordance with its rules. Re Campbell was distinguishable. This right is property which is capable of being held on resulting trust. On the facts, the presumption of resulting trust was not rebutted. Indeed, its consequence was supported by the evidence.
Comment The purchase of property in the name of another gives rise to a presumption of a resulting trust in favour of the purchaser. The principle here is based on the premise that property is purchased and the purchaser is not the legal owner (or the sole legal owner). This prima facie rule may be rebutted by evidence which establishes the real intention of the purchaser. On the facts of this case, the court decided that that Mrs A had purchased a property right in the name of her husband. The right was to have winnings, if any, received by the appropriate person on the syndicate’s behalf, duly administered in accordance with the rules of the syndicate, and in the absence of clear rules as the court may direct. The court was prepared to go further and decide that even before a win, a syndicate member would be entitled to a declaration that a ticket holder would hold winnings upon trust to apply in accordance with the rules of the syndicate. The purchase of the ticket in the circumstances is treated as an existing property right that may bear fruit in the future. In contrast, in Re Campbell, a claim to compensation from the Criminal Injuries Compensation Board was not treated as a property right before
Trust of a promise Burton and Another v FX Music; Taube v FX Music (1999) The Times, 8 May, HC A promise to transfer an existing right to property may be subject to a trust if the promisor intends the promise to create such trust.
Facts The two actions related to royalties in respect of a successful song called, ‘Ooh Aah Just a Little Bit’, sung by Gina G. Mr Taube, a barrister, wrote the song. Mr Burton and another (trading as the Next Room) were the producers of the original demo version of the song. By contracts made in 1995, FX Music (FX) became the main producers of the song for commercial distribution, although the Next Room made significant contributions. In March 1996, FX entered into an agreement with Warner concerning the making and distribution of discs of the song. In a letter, FX notified Warner that royalties were payable directly to the Next Room and Mr Taube. A further letter by FX authorised Warner to deduct and pay the royalties directly to the Next Room and Mr Taube. A dispute arose between FX on the one hand and Mr Taube and the Next Room on the other hand. Warner failed to distribute the royalties and retained them in an interest bearing account pending a resolution. FX went into a creditors’ voluntary liquidation. The creditors’ meeting was held on 2 March 1999. The claimants sought accounts and payment of the royalties due under the agreements with FX.
Held In favour of the claimants, the letters sent by FX to Warner were intended to have contractual effect and were sufficient to give the claimants proprietary rights in the royalties. The privity of contract rule prevented third parties from enforcing contractual provisions made for their benefit (this rule has recently been modified, see Contracts (Rights of Third Parties) Act 1999). However, the institution of a trust was an adequate device to enable third parties to enjoy benefits under contracts created for their benefit. On the facts of this case, a trust was created for the benefit of the claimants. The subject matter of the trust was Warner’s contractual obligation to FX to make royalties payments directly to the claimants. The same result could be achieved under a Quistclose trust (see Barclays Bank v Quistclose Investments [1970] AC 567), in respect of monies currently held by Warner. The moneys ought to have been paid to FX and the claimants. Instead, they were retained pending resolution of the dispute.
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Artistic Upholstery Ltd v Art Forma (Furniture) Ltd (1999) The Times, 21 September, CA An unincorporated association, by reference to its members, is capable of owning the goodwill of the society which may form the basis of a passing off action.
Facts The claimant, Artistic Upholstery Ltd (Artistic), sued in a representative capacity on behalf of itself and all other members of the Long Eaton Guild of Furniture Manufacturers (the Guild), an unincorporated association. The claimant sought to prevent one of the founder members of the Guild, the defendant, from appropriating the name, ‘Long Point’. The name had been used by the Guild for almost 20 years in connection with its twice yearly Long Point furniture exhibitions. At a meeting of the Guild in 1982, it was resolved that the exhibition should be promoted as the ‘Long Point Exhibition’. The defendant, Art Forma (Furniture) Ltd (Art Forma), was expelled by the Guild and subsequently registered the name, ‘Long Point’ as a trade mark. The claimant brought the action for a declaration that the registration was invalid and an injunction to restrain passing off exhibition services as services of the Guild. The defendant argued that (a) the Guild, as an unincorporated association was incapable of owning goodwill; (b) the defendant and other members enjoyed a concurrent right in the mark since it was first used in 1982; (c) the wrongful exclusion of the defendant from the Guild had the effect of terminating the agreement with all its members with the consequence that no Guild existed to maintain an action.
Held The court held in favour of the claimant. An unincorporated association is not a legal person, but exists as a label to identify its members. The rights of members as between themselves are contractual: see Re Bucks Constabulary Society (No 2) [1979] 1 WLR 936. The capacity of an unincorporated association to hold property (such as its premises and subscriptions) was subject to several solutions such as, through its members as joint tenants, or by an express trust for the members or the purpose of the association. However, the prevailing view is that personal property will be held under the express or implied terms of the contract governing the members inter se: see Re Recher’s Will Trust [1972] Ch 526 and Neville Estates v Madden [1962] Ch 832. An unincorporated association, such as the Guild, through its members, may own goodwill which could found an action such as passing off. The goodwill is held by the members as their property in accordance with the constitution and rules. The court rejected the defendant’s argument that its wrongful exclusion terminated the contracts of all its members. Such an argument flies in the face of practicality and common sense. The appropriate course of action for such an aggrieved member is to sue for damages for wrongful expulsion. The court also decided that the elements of a passing off action were established on the facts.
Extent of trustees’ lien X v A and Others (1999) The Times, 6 October, HC A trustee’s lien over the trust fund for proper costs and expenses extended to an indemnity against future liabilities.
Facts The trustee was the sole trustee of the will of the testator. The testator
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had created a trust of his residuary estate, including land. The estate was held on trust for his widow for life with remainder to his children, the defendants. The widow died and the children became absolutely entitled to the residuary estate. The application by the trustee was made out of concerns over the potential effect of the Environmental Protection Act 1990 which, when it is brought into force would impose a new and far reaching liability on owners of contaminated land. Although Pt 11A of the 1990 Act was not yet in force, an abatement notice could be served on the trustee as owner of the site under the statutory nuisance provisions of the Act. In addition, the owner may be liable at common law for nuisance or under the Rylands v Fletcher principle. The trustee applied for directions as to whether he had a lien over the trust funds for the liabilities to which he potentially could be liable in respect of the land.
Held It was held in favour of the trustee. By reference to the authorities, a trustee has a lien over the trust fund for his proper costs and expenses: see Stott v Milne [1884] 25 ChD 710; Re Beddoe [1893] 1 Ch 547; Re Pauling’s Settlement (No 2) [1963] Ch 576. This right extends to an indemnity against future liabilities even though the liabilities were contingent upon a number of issues, including the commencement of Pt 11A.
Incidence of the burden of proof of constructive notice Barclays Bank plc v Boulter and Boulter (1999) The Times, 21 October, HL Where a claimant makes an allegation of misrepresentation or undue influence against a bank, she bears the legal burden of proving constructive notice on the part of the bank.
Facts In 1979, Mr and Mrs Boulter borrowed £36,000 from Barclays Bank (the bank) secured by way of a mortgage to purchase their matrimonial home. The terms of the charge secured not only the loan for the house but ‘all monies’ which either or both of them might owe the bank. Mrs Boulter covenanted to repay all such sums. Mr Boulter later borrowed more money. In 1993, the bank sent him a demand for repayment of over £120,000. When he failed to pay, the bank obtained a possession order which was suspended on condition that he paid off the debt by instalments. He again failed to pay and a warrant for possession was issued. Mrs Boulter applied to the county court to set aside the order on the ground that she had a separate defence. She claimed that her husband had induced her to sign the charge in 1979 by undue influence and misrepresentation. She trusted him to deal with their financial affairs. He had misrepresented to her that the charge was to secure the money borrowed for her house, whereas it was in respect of ‘all monies’ borrowed. No one advised her that the charge would have this effect, and she alleged that the bank had notice, actual or constructive, of the misrepresentations or undue influence of her husband. The county court granted the application. Mrs Boulter then served her defence. Her pleading did not expressly state that the bank had actual or constructive notice of the misrepresentations and undue influence. On the other hand, it did allege facts which, according to Barclays Bank plc v O’Brien [1994] AC 180, could give rise to constructive notice. These were that (1) Mrs Boulter was married to Mr
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Boulter and were living together as husband and wife; and (2) the charge was not prima facie to her financial advantage. Only (1) was
the children (present and future) a life interest in a share of the trust fund, and after their deaths their shares would pass to their children and
pleaded expressly. In addition, the pleading did not allege that these facts were known to the bank. On the procedural question of whether the pleading ought to be amended to allege notice of the bank, the Court of Appeal decided that the cicumstances of the case were
remoter issue. The settlement provided for an accumulation period of 21 years commencing on the date of the settlement. Prior to a beneficiary attaining the age of 21 or until the expiration of the accumulation period (whichever happened earlier), the settlement
exceptional in that it had been made clear at the earlier hearing that the wife would be relying on the defence of constructive notice of the bank. In the circumstances, no amendment was necessary. However, the Court of Appeal expressed the point on a wider basis. It decided
conferred a discretion on the trustees to apply the whole or part of the income for the maintenance and education of such beneficiary. Clause 12 of the settlement provided, inter alia, that no part of the capital or income of the trust fund may be paid or lent to or applied for the benefit
that the wife did not have to plead constructive notice because she did not have to prove that the bank had constructive notice; it was for the bank to prove that it did not have notice. The bank appealed to the House of Lords.
of the settlor, either directly or indirectly. On a divorce between the settlor and his wife, a consent order was made requiring the settlor to pay, inter alia, the children’s school fees until they reached the age of 17. The trustees wished to exercise their power of maintenance and
Held The appeal was dismissed. The decision of the Court of Appeal on the pleading issue was affirmed. The purpose of the pleadings is to define the issues and give the other party fair notice of the case which it has to meet. Concealed allegations do not perform this function. However, the bank knew perfectly well what case it had to meet. The bank could not seriously have thought that Mrs Boulter was abandoning the defence involving constructive notice. In practical terms, it was her only defence. The decision of the Court of Appeal on the burden of proof was reversed. In the circumstances, Mrs Boulter had the legal burden of proof to establish that the bank had notice of the misrepresentations and undue influence of her husband. What she claims is that the bank cannot rely upon the charge and the covenant because they were vitiated by the undue influence and misrepresentations of her husband. The situation here was analagous to a purchaser of a chattel whose vendor’s title was vitiated by fraud. In such a case, the defrauded owner retains no proprietary interest in the chattel and it is therefore not for the purchaser to establish a defence which would defeat it. Instead, it is for the owner to prove that the purchaser had actual or constructive knowledge of the fraud. In the case of the allegation of undue influence exercised by the husband, the burden of proof is prima facie easily discharged. Mrs Boulter needs to show only that the bank knew that she was a wife living with her husband and that the transaction was not on its face to her financial advantage. The burden is then on the bank to show that it took reasonable steps to satisfy itself that her consent was properly obtained.
provide funds for the children’s education, but were unclear as to the validity of the proposed exercise of their power. An application was made to the court to clarify the situation.
Held Lightman J decided that the exercise of the power of maintenance was not restricted by cl 12 of the settlement. The incidental effect of relieving the settlor from his obligation to provide school fees on behalf of his children did not suspend the trustees’ power of maintenance. The exercise of the discretion of the trustees ought to be considered in two stages. The first stage required the trustees to consider their discretion on the assumption that cl 12 was not inserted into the settlement. In this situation, the trustees are required to have regard exclusively to the interests of the beneficiaries. If the trustees are not minded to exercise their discretion that would be the end of the matter. The second stage in the analysis allows the trustees to exercise their discretion, even though a by-product of the exercise results in an advantage to the settlor. His Lordship interpreted cl 12 as an affirmation of the duty of the trustees to have regard exclusively to the best interests of the beneficiaries and to ignore those of the settlor. This view was in conformity with the approach adopted by Lord Reid in Oakes v Commissioner of Stamp Duties of New South Wales [1954] AC 57.
Manifest disadvantage remains an essential ingredient Barclays Bank v Coleman and Another (2000) The Times, 5 January, CA
Trustees may exercise their discretion and relieve the settlor from an obligation
Manifest disadvantage in the sense of a clear and obvious disadvantage
Fuller v Evans and Others (1999) The Times, 10 November, HC
Facts
A settlement, which prohibited the use of trust funds for the benefit of the settlor, did not prevent the trustees from exercising their discretion to pay school fees on behalf of the beneficiaries, even though this provided an incidental benefit to the settlor.
Facts By a settlement, dated 10 October 1986, an accumulation and maintenance trust was created in favour of the settlor’s present and future children. On the date of the proceedings, the settlor had two children, aged 14 and 12 years. The settlement conferred on each of
remains an essential ingredient on a wife’s claim of presumed undue influence by her husband.
A matrimonial home which was jointly owned by a husband and wife was mortgaged in order to secure the husband’s debts. The wife’s case was that her execution of the mortgage had been procured by the husband’s presumed undue influence over her of which the mortgagee had notice: see Barclays Bank plc v O’Brien [1994] 1 AC 180. The wife alleged that the charge ought to be set aside on the grounds, inter alia, that the security was manifestly disadvantageous to her, and that the bank relied on an inadequate certificate of independent legal advice. The certificate was not signed by a solicitor but by a legal executive. The judge decided against the wife on the ground that he was not satisfied that the charge was manifestly disadvantageous to her. On
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appeal to the Court of Appeal.
Held The appeal was dismissed but for reasons which differed from the judge. The Court of Appeal decided that ‘manifest disadvantage’ was an essential ingredient for claims of presumed undue influence. The authorities were in an unsatisfactory state and the concept was elusive and often difficult to apply to the facts of individual cases. Doubts were cast over the future of the concept by Lord Browne-Wilkinson in CIBC v Pitt [1994] 1 AC 200. In Cheese v Thomas [1994] 1 WLR 129, Nicholls VC held that the expression meant ‘clear and obvious’. In the present appeal, provided that the charge in favour of the bank was clear and obvious and more than de minimis, the actual disadvantage to the wife might be slight. In deciding this question, an objective view is required to be taken and this is done at the time the transaction is entered into. Applying these principles to the facts of the case, the Court of Appeal reversed the decision of the judge. The form of the legal charge had enabled the husband, without resort to his wife, to subject the house to much greater financial risks than she could ever have known. This was a clear and obvious disadvantage to the wife. However, the decision of the judge was reversed on the view taken of the certificate of independent advice by a legal executive. The judge’s view did not accord with the realities of solicitors’ practice in contemporary society. The responsibility for dealing with such matters are frequently and properly delegated to legal executives. The test here is independent legal advice. Advice given by a legal executive was legal advice and, provided that it was independent and given with the authority of his principal, there was no sound reason for holding that it was inadequate. On the facts of the present case, the bank, in relying on the certificate, had taken reasonable steps to avoid being fixed with constructive notice of the wife’s right to have the mortgage set aside.
Prevention of offender profiting from the proceeds of crime
defendant acted in breach of his duty of confidentiality owed to the Crown as an ex-member of the SIS. It was alleged that the Crown was the beneficial owner of the copyright in the book and the defendant was accountable to the Crown for all sums received in respect of the publication. It was not contended that in writing the book the defendant had committed any breach of his duty of confidence. Moreover, it was conceded by the Crown that the information contained in the book relating to the SIS was no longer confidential. The High Court dismissed the claim on the ground that an ex-member of the SIS did not owe the Crown a continuing duty not to use any information imparted to him in that capacity in order to generate a profit or benefit himself! On the facts, the Crown had not established any abuse by the defendant of his position as a former member of the SIS (see [1997] SLRYB 88). The Attorney General appealed to the Court of Appeal on a different ground, namely, to prevent George Blake, a criminal, from retaining the profits directly derived from the commission of his crime. The Crown claimed an injunction seeking to restrain the offender from receiving or authorising anyone to receive on his behalf payments or other benefits connected with the book. The Court of Appeal allowed the appeal and devised a confiscatory order in order to prevent the money reaching Mr Blake. The basis for creating this order was in order to uphold the public policy of denying a criminal receiving the profits of his crime. It is an offence under s 1(1) of the Official Secrets Act 1989 for a former member of the SIS to disclose official information without lawful authority, whether or not the information was secret or confidential and, whether or not its disclosure would be damaging to the national interest. An injunction restraining the defendant from receiving any further payments from the publishers ensured that the criminal law is not flouted and thereby brought into disrepute (see [1998] SLRYB 91). Mr Blake appealed to the House of Lords. The Attorney General raised an additional argument namely, a claim for an account of Mr Blake’s profits even though the Crown could not establish that it had suffered loss. This claim is sometimes referred to as ‘restitutionary damages’ .
Held AG v Blake (2000) 27 July, HL, not yet reported The profits earned by a former member of the security services, from writing his autobiography, were payable to the Crown.
Facts The defendant, George Blake, was a member of the Secret Intelligence Service (SIS) from 1944 to 1961. In 1951, he became an agent for the Soviet Union. From that time until his arrest in 1960, he disclosed secret information and documents to the Soviet Union. In 1961, he was convicted of an offence under the Official Secrets Act 1911 and was sentenced to 42 years’ imprisonment. In 1966, he escaped from Wormwood Scrubbs and made his way to Moscow where he lived. In 1989, Mr Blake wrote his autobiography detailing his activities as a member of the SIS. His publishing company was Jonathan Cape Ltd. Mr Blake received £50,000 as advance royalties, £50,000 on delivery of the final manuscript and £50,000 on publication of the book. The book entitled, No Other Choice, was published in 1990. Jonathan Cape Ltd had paid Mr Blake about £60,000 under the publishing agreement. For all practical purposes, this amount was not recoverable, but Mr Blake was entitled to receive royalties from future sales of the book. The Crown, suing by the Attorney General, claimed the financial benefits accrued from the publication of the book, in addition to future royalties. The claim was based on the ground that in writing the book, the
The House of Lords by a 4:1 majority (Lord Hobhouse dissenting) dismissed the appeal and decided in favour of the Crown, but varied the order made by the Court of Appeal on the following grounds: (a) as a result of his breach of contract, practical justice demanded that Mr Blake be disentitled to the profits that he would (b)
otherwise have received; reversing the decision of the Court of Appeal on the public law claim. The court has no power at common law to make a confiscation order. Parliament has created such a power within clearly defined limits.
Comment There were two issues for consideration by the court. First, the private law claim to ‘restitutionary damages’ for breach of contract. Secondly, whether the court is entitled at common law to create a ‘freezing order’ preventing a criminal from enjoying the proceeds of his criminal activity – the ‘public law’ claim. The House decided the private law claim by a 4 to 1 majority in favour of the Crown. The issue was to what extent will the court award substantial damages for an infringement when no financial loss flowed from the breach and, moreover, how far will the court assess the damages by reference to the defendant’s profit accruing by reference to the infringement. This question was raised in the Court of Appeal, but the Attorney General failed to advance arguments on this point which
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E Q U I T Y was left open for the House to determine. Occasions involving this principle are cases of ‘skimped’ performance and instances where the defendant obtained his profit by doing the very thing he contracted not to do. The present case fell into the latter category in that Mr Blake earned his profit by doing the very thing he promised not to do. The basic approach regarding the assessment of damages in the law of contract and tort is compensation for the loss or injury. The general rule concerning the measure of damages is to put the claimant in the same position, in monetary terms, as he would have been had there not been a breach of duty. In short, damages are measured by the claimant’s loss rather the defendant’s gain. But, the common law recognised that there are many situations where a strict application of this principle would not achieve justice between the parties, for example, a trespasser who enters another’s land may not cause financial loss to the landowner. In such a case, compensation for the wrong done to the claimant is measured by a different yardstick. The damages are measured by the benefit received by the trespasser. The approach of the common law courts in such a case is to award to the claimant the price which a reasonable person would pay for the right of user (see Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798; contrast Surrey County Council v Bredero Homes Ltd [1993] 1 WLR 1361). In such a case, the award of damages is clearly not compensatory, unless ‘loss’ is given a strained and artificial meaning. Courts of equity went further than the common law courts. The standard remedies were injunctions and accounts of profits. An injunction restrained the continuance of the wrong and the wrongdoer was required to account for the profits and benefits he had obtained from breaches which had occurred. Lord Nicholls concluded by stating that there is no reason, in principle, why the court ought to rule out an account of profits as a remedy for breach of contract. When a just response to a breach of contract so requires, the court should be able to grant the discretionary remedy of requiring the defendant to account to the claimant for the benefits he has received from his breach of contract. An account of profits will be appropriate only in exceptional circumstances. Lord Nicholls opined that no fixed rules can be prescribed, The court will have regard to all the circumstances, including the subject matter of the contract, the purpose of the contractual provision which has been breached, the circumstances in which the breach occurred, the consequences of the breach and the circumstances in which relief is being sought. Counsel for the Crown suggested that the test for a claim concerning the disgorgement of profits against a contract breaker will be satisfied if four conditions are met. These conditions gained the express approval of Lord Steyn. They are: (1) there has been a breach of a negative stipulation; (2) the contract breaker has obtained the profit by doing the very thing which he promised not to do; (3) the innocent party (in this case the Crown) has a special interest over and above the hope of a benefit to be assessed in monetary terms; (4) specific performance or an injunction is an ineffective or virtually ineffective remedy for the breach. On the facts of the present case, these conditions were satisfied. The House decided that the circumstances of the present case were exceptional. Mr Blake was employed as a member of the security and intelligence services. Secret information is the lifeblood of these services. In the 1950s, Mr Blake deliberately committed repeated breaches of his undertaking not to divulge official information gained as a result of his employment. He caused untold and immeasurable damage to the public interest. In 1990, he published his autobiography, which involved a further breach of his express undertaking. At this time,
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the information disclosed was no longer confidential. This disclosure amounted to a criminal offence under the Official Secrets Acts, even though the information was no longer confidential. The Crown had a legitimate interest in preventing Mr Blake from profiting from the disclosure of official information, whether classified or not. It is of paramount importance that members of the service should have complete confidence in all their dealings with each other, and that those recruited as informers should have the like confidence. The undertaking by Mr Blake was closely akin to a fiduciary obligation, where an account of profits is a standard remedy in the event of a breach. The majority of the Law Lords decided that had the information which Mr Blake disclosed been confidential, an account of profits would have been ordered. In the special circumstances of the security services, the same conclusion should follow even though the information was no longer confidential. A similar conclusion was reached in the majority decision of the Supreme Court of the United States of America (see Snepp v United States 444 US 507 (1980)). The public law claim was founded on the premise that the royalties belong to Mr Blake. The order of the Court of Appeal was not intended to extinguish Mr Blake’s title. The order was intended only to be preservative (a ‘freezing’ order), that is, Mr Blake was restrained from receiving payment of royalties ‘until further order’. But, the effect of the order was confiscatory. The House unanimously decided that the court has no power to make such an order. Parliament had carefully marked out when such an order may be made and those circumstances do not apply to the facts of this case. There is no power at common law to confiscate property belonging to a criminal.
Demilitarisation project not treated as a charitable purpose Southwood v Attorney General (2000) The Times, 18 July, CA A trust for the advancement of the education of the public in the subject of militarism and disarmament does not promote the public benefit.
Facts The trustees of a trust created by deed was described therein as ‘Project on Demilitarisation’ (Prodem). The objects of the trust included ‘the advancement of the education of the public in the subject of militarism and disarmament ... by all charitable means’. The Charity Commissioners refused to register the trust as a charity. The trustees appealed to the High Court. The judge took the view that the purpose of the trust was not charitable in law because it promoted a political purpose. The trustees appealed to the Court of Appeal.
Held The appeal was dismissed and the the decision of the High Court affirmed. It was clear from the evidence that Prodem’s object of educating the public that peace was best secured by ‘demilitarisation’ cannot be for the public benefit. The court accepted that the promotion of peace as an end in itself is a charitable purpose, but recognised that there were differing views on how best to secure peace and avoid war. The court was not in a position to determine that the promotion of one view rather than another was for the public benefit. For the court to attempt to make such value judgments would usurp the role of government.
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The narrow issue involved in this decision was whether, on construction, the trust promoted a political purpose as an end in itself,
dissipated. In November 1986, which was prior to the Algarve land development scheme, Mr Murphy effected a whole life insurance
or was otherwise educational in a charitable sense. A trust which promotes a political purpose does not satisfy the public element test (and fails as a charity) because the court has no means of judging whether a proposed change in the law is for the public benefit, per Lord
policy in the sum of £1m. A premium of £10,220 was payable annually throughout Mr Murphy’s life. The first two annual premiums (Nov 1986 and 1987) were paid out of Mr Murphy’s funds. The source of the third premium (Nov 1988) was unclear, but it was conceded that the fourth
Parker in Bowman v Secular Society Ltd [1917] AC 406. In McGovern v Attorney General [1982] Ch 321, Slade J categorised (without intending to create an exhaustive list) the occasions when a trust will be construed as promoting a political purpose. These concern trusts of
and fifth premiums (Nov 1989 and 1990) were paid out of the investors’ funds. Mr Murphy committed suicide in March 1991. The insurance company duly paid the proceeds to the trustees of the policy. At the time the policy was issued, Mr Murphy’s estate was not excluded
which a direct and principal purpose include: (1) the furtherance of the interests of a particular political party; (2) the procurement of changes in the laws of this country or other countries;
from any beneficial interest under the policy but, after 16 March 1989, Mr Murphy’s estate was excluded from all beneficial interest under the policy. Moreover, Mr Murphy was, from the inception of the policy until his death, a trustee of the policy. Mr Foskett, the claimant, sued as
(3)
the procurement of a reversal of government policy or of particular decisions of governmental authorities in this country or foreign countries.
a representative of the investors. Mrs McKeown and another, the defendants, were the surviving trustees of the policy. In 1997, the claimants obtained £600,000 under a compromise with Lloyd’s Bank
The question in issue was whether or not the present case fell within the third category. In the present case, the purposes of the trust were set out in clause 3.1 of the trust deed thus: ‘The advancement of the education of the public in the subject of militarism and disarmament and related fields by all charitable means including the promotion, improvement and development for the public benefit of research into this subject and the publication of the useful results thereof.’ The court decided that there was no objection to an educational programme which began from the premise that peace was generally preferable to war. But, this proposition does not lead to the conclusion that the promotion of pacifism in any circumstances is necessarily charitable. The premise that peace was generally preferable to war was not to be equated with the premise that peace at any price was always preferable to any war. The court accepted the proposition that a trust is charitable if its purpose is to educate the public in the different means of securing a state of peace and avoiding a state of war. But, there are differing views as to how best to secure peace and avoid war, for example, there are passionate views held by the public on both multilateral and unilateral disarmament as means of securing peace. The court is in no position to judge that the promotion of one view as opposed to the other is for the public benefit. Not only does the court not have the material on which
with whom the purchasers’ money had been deposited and from whose bank account it had been misappropriated to pay the 1990 premium. The claimants’ contended that a trust was created in their favour when Mr Murphy received their money in pursuance of the Algarve land development scheme. In fraudulent breach of trust, Mr Murphy used their money to pay the 1989 and 1990 (and in part the 1988) premiums. These payments gave them an equitable proprietary interest in the policy and its proceeds. Accordingly, they were entitled to claim a pro rata share of the proceeds of the policy. Alternatively, they contended that they were entitled to an equitable charge upon the policy and its proceeds to ensure the repayment of the premiums. The defendants asserted that although the investors’ moneys could be traced into the premiums, it could not be traced into the policy proceeds. The policy conferred a contractual right to payment of £1m on the death of Mr Murphy. This contractual right was acquired when the contract was made and the first premium was paid. Mr Murphy financed all the premiums from his own funds, save for the 1989 and 1990 premiums. Since the premiums paid after the inception of the policy had not contributed to the creation of the contractual right, those persons, whose moneys were used to continue the policy, could not claim an interest in the proceeds.
to make such a choice, but to attempt to do so would usurp the role of government. On construction, the court decided that the dominant purpose of Prodem was to educate the public to an acceptance that
The Court of Appeal, by a majority, allowed the defendants’ appeal from the decision of Laddie J. The Court of Appeal decided that the claimants were only entitled to recover such of the premiums which
peace is best secured by demilitarisation and was therefore political .
were wrongly paid by the trustee. They were not entitled to a pro rata share in the proceeds, since the beneficiaries under the policy were
Tracing money through an insurance policy Where a trustee misappropriated trust funds in order to fund premiums on a life assurance policy in favour of his children, the beneficiaries become part owners of the policy proceeds and are entitled to a pro rata amount of the sum assured.
Foskett v McKeown and Others (2000) The Times, 18 May, HL
Facts Messrs Murphy and Deasy held sums totalling £2.7m as trustees for various investors in an Algarve property development scheme. Although land in the Algarve was purchased, it was never developed. The funds of the investors, which existed in two accounts, were
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innocent of any part in the breach of trust, and the benefit which accrued to them from the use of the investors’ money consisted merely of the keeping on foot of the policy (contra the dissenting view of Morritt LJ). No question of resulting or constructive trust arose for payment of the premiums did not make the investors part owners in equity of the policy. The claimants appealed and the defendants crossappealed to the House of Lords. The defendants cross-appeal was based on the argument that the purchasers had elected to receive compensation for the breach of trust in respect of the aborted land deal (that is, £600,000 from Lloyd’s Bank) and could not pursue a claim in respect of the policy proceeds.
Held Allowing the appeal by a majority of 3:2, Lords Steyn and Hope dissenting, and unanimously dismissing the cross-appeal. (1)
The majority of the Law Lords decided in favour of the claimants on the basis that the investors were entitled to a pro
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rata share of the proceeds of the policy. They treated the policy and its proceeds as if they were assets standing in the name of
require any adjustment on account of the compensation received by pursuing other claims and remedies. But their Lordships conceded that
Mr Murphy beneficially. The majority of the Law Lords reasoned that immediately before the payment of the fourth premium, the property held in trust for the defendants was a chose in action, that is, the bundle of rights enforceable under
had the claimants pursued a remedy for damages, the relief they had already obtained in other proceedings would have been taken into account in the assessment of their loss. That was not because they were to be held to any election, but because a party could not recover twice
the policy against the insurers. Mr Murphy, the trustee, by paying the fourth premium out of the moneys of the claimants’ trust fund, wrongly mixed the value of the premium with the value of the policy. Thereafter, the trustee for the defendants
for the same loss.
held the same chose in action (that is, the policy) but with the enhanced value of both contributions. The court drew an analogy with the situation where a trustee mixes the funds of two groups of innocent beneficiaries in a bank account. On this basis, the majority of the Law Lords decided that the proceeds of the policy were held in proportion to the contributions which the parties made to the five premiums. (2)
A N D
The House unanimously dismissed the cross-appeal on the ground that the claim made against the bank in respect of the land deal was distinct from the claim made against the proceeds of the life assurance policy. The two remedies asserted by the claimants were wholly unrelated. Accordingly, the claimants were not put to any election.
Comment In the vast majority of cases involving the tracing remedy, the court is required to decide which of two innocent parties would bear the loss as a result of the activities of a fraudster. The present case was unusual in that the the converse question was in issue, namely, which of two innocent parties would benefit from the activities of a fraudster. With regard to the tracing remedy, the crucial factor was that the claimants were alleging that they enjoyed an equitable proprietary interest in the policy moneys. Like any other equitable proprietary interest, such interest existed in any other property which, in law, represented the original trust assets. The purchase moneys were originally subject to an express trust. Part of this trust fund was misappropriated and used to pay some of the premiums on the life policy. The equitable interest which the claimants enjoy was enforceable against anyone except a bona fide purchaser of the legal interest for value without notice. The children, beneficiaries, under the policy were not bona fide purchasers of their interest, but were mere volunteers. Immediately before the payment of the fourth and fifth premiums, the property which was held in trust for the children was a chose in action, enforceable under the policy. By paying the fourth and fifth premiums out of moneys belonging to the claimants, the trustee had wrongly mixed the value of the premiums with the value of the policy. Thereafter, the trustee for the children held the same chose in action, the policy, but it reflected the value of both contributions. It followed that both the policy and the policy moneys belonged to the children and the claimants according to their contributions to the premiums paid. The submission made by the defendants on the cross-appeal was that the claimants had elected to recover their plots of land in specie. They had received monetary compensation in satisfaction of their claim to recover their deposits and were barred by that election from pursuing any claim against the proceeds of the policy. The House unanimously rejected this argument. The claims against the developers were distinct from the claim against the proceeds of the policy. By instituting the tracing process, the claimants were simply seeking to recover their property. The amount to which they were entitled did not
Test for knowingly receiving trust property The test for knowingly receiving trust property for one’s own use is based on the recipient’s conscience.
Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele (2000) The Times, 22 June, CA
Facts International Credit and Investment Co (Overseas) Ltd (ICIC), whose affairs were managed by the BCCI group, needed money to give a false impression that dummy loans were performing normally. In 1985, in pursuance of this objective, it obtained US$10 million from the defendant, a prominent Nigerian businessman, under an artificial loan agreement. In 1988, under the terms of the agreement, the defendant was paid by BCCI US$16.79 million pursuant to a divestiture agreement. The claimants contended that the defendant was liable to account to them for US$6.79 million as a constructive trustee. In pursuing this claim, the claimants relied on the defendant’s knowledge of two factors from which they inferred his dishonesty: the artificial nature of the transaction and the abnormally high rate of return, 15% compound interest that he received. The judge held that the defendant had not acted dishonestly and the claim under knowing assistance was bound to fail. The claim could only succeed, if at all, under the knowing receipt head. On appeal to the Court of Appeal, the question was whether the recipient had to have actual knowledge, or the equivalent, that the assets received were traceable to a breach of trust or whether constructive knowledge was sufficient.
Held The appeal was dismissed but for different reasons. It was debatable whether the fivefold categorisation of knowledge laid down by Peter Gibson J in Re Baden Delvaux [1993] 1 WLR 509 was of any use in knowing receipt cases. The test is whether a recipient could conscientiously retain the funds as against the company. Just as there is now a single test of dishonesty for knowing assistance, so ought there to be a single test of knowledge for knowing receipt cases. The material date for determining the defendant’s state of knowledge was 1985, the date of the agreement. Additional knowledge that he acquired between 1985 and 1987, press rumours of irregularities involving BCCI, warnings to him from business figures in Nigeria and his becoming aware of the arrest of BCCI officials in connection with money laundering, did not make it unconscionable for him to retain the receipt. The additional knowledge went to the general reputation of BCCI. It was not sufficient to question the propriety of the 1985 transaction.
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Article Legal system and Community policies ....................................................................119
Case notes Case C-218/98 Adoulaye v Renault SA....................................................................121 Case C-49/92P Commission v Anic Partecipazioni SpA..........................................121 Cases C-174/98P and C-189/98P Netherlands and Van der Wal v Commission ....122 Case C-272/97 Sirdar v Army Board ........................................................................123 Case C-51/96 Deliège v Ligue Francophone de Judo et Disciplines Associées ASBL ..................................................................................................124 Case C-176/976 Lehtonen v Fédération Royale Belge des Sociétés de Basket-ball ASBL ................................................................................................125
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Legal system and Community policies by John Tillotson, School of Law, University of Nottingham Students presently beginning their study of law in the European Union will already realise that the subject, as taught, broadly consists of two main areas: legal system, in large part the Community legal system based on the EC Treaty, and substantive economic and social law, as found in key Community policy areas. Putting legal studies into ‘boxes’, compartmentalising it, is perhaps invariably somewhat artificial – public law and private law, contract and
proportion of it is no longer in force. The European Court reports now cover many volumes over a period of over 40 years. Nevertheless, for
tort? And similarly with this subject. With very few exceptions, the cases which the student meets in his or her first weeks of study, apart from involving both national courts and the Court of Justice, the latter establishing and explaining basic principles of system or legal order – supremacy of EC law and direct effect – all the cases have as their ultimate practical purpose the resolution of disputes at the national level within one of the Community’s policies, as found in the list of ‘activities’ or competences in Art 3 of the EC Treaty. Van Gend en Loos, the Dutch traders, were concerned that the national customs authorities had sent them a demand for payment of import duty on a consignment of goods at a rate higher, in their opinion, than that allowed under the Customs Union rules of the Treaty of Rome. Gabrielle Defrenne, the Belgian air hostess, brought a claim against her airline employer on the basis that, although she was engaged in work equal to that of her male counterparts, she was however paid less than them in a situation which in her view was contrary to the sex discrimination rules of the Treaty. Tullio Ratti, the Milanese industrialist, was prosecuted because he had packaged and labelled his solvents and varnishes in a manner contrary to Italian law, albeit in conformity with
the purposes of this brief analysis, it is possible to give some indication of the legal order in operation. Let us consider three of the Community’s most important policy areas; first, free movement of goods in the Single European Market. The aim of the Community’s internal trade policy is to achieve what has been called the competitive interpretation of national markets. The evolvement of the policy has necessitated the removal of barriers to inter-Member State trade introduced by the governments of those Member States both before (or even after) the Treaty first came into effect. States have adopted such restrictive policies for various reasons such as the protection of home industries from foreign competition or in the face of international balance of payments difficulties. National obstacles to trade have included tariff or fiscal barriers, such as the import duties in Van Gend en Loos and, more significantly over the years, a wide variety of national non-tariff rules which create quantitative restrictions and prohibitions on trade between the Member States. The main weapon in the Treaty regarding these restrictions on
Community legislation adopted with the aim of bringing national rules on these matters in all the Member States into compliance with European standards. Drawing attention to these substantive issues of free movement, sex discrimination, health and safety and legal integration is not to suggest that they should be fully explored during these early stages in the teaching of the subject. The focus is elsewhere, but that focus – in these cases on direct effect – is upon a judicial method – a judicial innovation – enabling outcomes to two and a half of these cases which were, or which came to be, accepted in legal terms in the Member States. When the study of the legal order moves to consideration of Community legislation, the binding acts of Art 249 (formerly 189) of the Treaty, it can be argued that the treatment here may be too abstract, too lacking in a sense of the purpose of the legislation. The Treaty, which is an act of the Member States, is only of a framework nature, what is known as a ‘traité cadre’. More will probably be required for the detailed implementation of its policies and for its terms, as interpreted, to be enforced within the continually evolving complex of relationships between the Community’s institutions, the Member States and private
trade is the directly effective Art 28 (formerly 30) which prohibits such national measures. It is important to appreciate that its scope is limited to trade in goods across borders. Although Member States’ borders remain in a political sense, in this economic context the Community must have no internal frontiers. Article 28(30) has been enforced in many cases by inter-State traders in national courts, via interpretative Art 234 (formerly 177) rulings by the Court of Justice, against national authorities seeking to apply restrictive measures against them. However, as is the case with judge made law, this is a slow process despite the fact that this ‘vigilance by individuals’, as the Court described it in Van Gend en Loos, is supplemented by enforcement actions against defaulting Member States under Art 226 (formerly 169). Nor is the prohibition of Art 28(30) absolute. A Member State may, for example, justify its restrictive rules on one of several grounds laid down in the Treaty itself – in Art 30 (formerly 36) – and so secure a derogation from the free movement principle. The most significant of these grounds is that the imported goods, for example, foodstuffs, constitute a genuine danger to public health. The national restrictive measure therefore constitutes a legitimate reason for overriding free movement. The Community answer to this slow moving and, in cases of
parties within those States. That ‘more’ is to be found primarily in these acts of the institutions, the decisions of the Court and the interplay between the two.
derogation, understandably imperfect process was to turn to its
There are now close to 400 volumes of collected Community legislation in the ‘L’ series of the Official Journal, albeit a significant
Market Art 100a (now 95) of the Treaty have been adopted setting
legislative capability. Over the last 15 years in particular, a large number of Council harmonisation Directives based on the Internal ‘European’ standards of safety, etc, in a variety of areas, from food and
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building materials to children’s toys, with which products must at least comply in order to secure free circulation. The health and safety matters of public concern previously subject to allowable but differing national requirements are thus under such Directives protected and enforced on a Community basis. Where the legislation is exhaustive, recourse by Member States to Art 30 is excluded. A prime, if somewhat complicated, illustration of this concerned the BSE, or ‘mad cow’ disease, problems in the 1990s with British beef exports. Widespread concern regarding the health hazards seen to be involved resulted in the adoption in 1989 of a Commission Decision addressed to all Member States concerning protective measures relating to BSE in the UK, the disease being classified for the first time as a serious contagious or infectious animal disease. The Decision was based on a 1964 Council harmonisation Directive on ‘animal health problems affecting intra-Community trade in bovine animals and swine’. The Directive in turn was based on Art 43 (now 37), a CAP Article, and Art 100 (now 94), the Article forming the basis for harmonisation measures within the Common Market at that time. The operation of Community competition policy, another crucial element of the Common or Internal Market, presents a somewhat different picture. The targets of the enforcement procedure are business enterprises – undertakings in Treaty language – not the Member States, and control is almost entirely in the hands of the Commission, acting under delegated authority from the Council. The underlying Treaty Articles, Art 80 (formerly 85) on restrictive trading agreements and Art 81 (formerly 86) on abuses by an undertaking of a dominant position on a market for goods or services, are directly effective but enforcement actions by private parties on the basis of anti-competitive market conduct which affects trade between Member States have been very infrequent in the UK. The Council in 1962 adopted legislation on the basis of Art 87 (now 83) of the Treaty in the form of Regulation 17 to give effect to Arts 85 (now 80) and 86 (now 81). The Regulation gave the Commission extensive powers to investigate, determine the existence of, and penalise by fine or periodic penalty payments infringements by undertakings of those Articles. It also laid down procedural safeguards, such as the right of undertakings to a hearing on matters to which the Commission had taken objection, which the Commission must follow. The penalisation of non-compliant undertakings is effected by the Commission by the adoption of quasi-judicial Decisions addressed directly to the firm or firms in question which are obviously binding on them. Such Decisions are, as with all Community legislation, subject to review by the Court of First Instance (previously by the Court of Justice), with a right of appeal to the Court of Justice. Since the 1960s, the Court of Justice, without the need for further elaboration of the Treaty Articles, has been able to establish the basic principles of Community competition law in particular, in this context, as regards Art 81(3) (previously 85(3)) which provides a basis for exemption from prohibition of trading agreements between undertakings which, although restrictive of competition within the Common Market, nevertheless produce economic or technical benefits which outweigh such restrictive results. The combined effect of the Court’s decisions over the years together with the Commission’s growing experience was to enable the Commission, as provided for in Art 81(3), to apply a series of what are known as Block Exemption Regulations to certain types of commonly found business agreements. The aim of such Regulations is that undertakings need only to conform to the terms of the relevant Regulation to know that their agreement escapes the prohibition of Art 81. The administration and enforcement of competition law offers an
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exceptional illustration of a Community central institution dealing directly with firms and individuals in the Member States. On the other hand, the administration of the Community’s Common Agricultural Policy is primarily of a mixed kind with both the Community and national authorities playing a part in the common organisations of the markets in key products such as cereals, fruit and vegetables and wine. The management of agricultural markets is a complex and difficult business. The need for uniformity and in many cases speed of decision making means that Regulations (even if they are of only limited legal life) are the most effective means of implementation of policy and its detailed adjustment. Although the CAP is not normally a specific study on undergraduate courses, students will encounter a number of important cases in which CAP legislation is challenged indirectly in a national court on the basis of Art 234 (formerly 177) in an action against national implementing measures which have a detrimental impact on the applicant. Such an action, if successful – the national measures being held to be based on invalid EC legislation – gives rise to a further right to sue the Community institution(s) which adopted the legislation in question for damages. The nature of these cases may be difficult to appreciate unless they are put into the context of policy implementation. We will consider just one illustration, which provides a good example of the operation of the management (or, rather, mismanagement) of the dairy products sector and the legislative process involved. In order to combat the problem of overproduction of milk within the Community and so to stabilise the market, Council Regulations (based on the appropriate Treaty Articles) were adopted under which dairy farmers were to be paid a premium out of Community funds if, on a voluntary basis, they marketed no milk for a period of five years. Otherwise farmers were subjected to supply quotas. Detailed rules regarding certain aspects of the scheme were adopted by means of Commission Regulations. Implementation of the scheme in the Member States was entrusted to the relevant national agricultural organisations. In the Netherlands, a farmer (one of a great many throughout the Community who had taken themselves out of milk production) applied at the end of the five year period to the Dutch implementing authority requesting a supply quota. When this was refused, he challenged this administrative decision as being based on invalid Community Regulations in that they did not provide for his renewal of production. The challenge was upheld by the Court of Justice following an Art l77(1)(b) validity reference from the Dutch court. This and other similar cases later produced a flood of claims for damages against the Council and Commission under Art 215(2) (now 288(2)). The main focus of our attention here should be upon the hierarchical legislative and administrative regime operating in the context of the CAP. First, we have Council Regulations adopted on the basis of what is now Art 202, indent 2 of the Treaty and the Council’s ‘power to take decisions’ (using the word ‘decisions’ in its everyday sense). Secondly, we have the conferment by the Council under Art 202, indent 3 on the Commission of powers for the implementation of the rules laid down by the Council. Thirdly, the exercise of those powers by the Commission as provided for in Art 211, indent 4 of the Treaty. Fourthly, the requirement that the Community rules operate on a decentralised basis through the medium of the appropriate national farming bodies, who are allowed a modicum of discretion to cater for particular or exceptional circumstances within their territories. In conclusion, students should be reminded that the purpose of this short article is to tie the Community legal system a little closer to three of the substantive economic policy fields in which it operates. And this at an early stage in their studies, so as to impress upon them the inevitable fusion of legal system and substantive law.
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Case notes
Comment
by Angus MacCulloch, Faculty of Law, University of Manchester
with termination of employment on the grounds of pregnancy. This
This case follows in a long line of cases regarding discrimination flowing from the treatment of pregnancy, many of which have dealt case is unusual in that it deals with a challenge to a benefit received by a woman, on the basis of her pregnancy, for which there is no comparative benefit for men. In its judgment, the Court maintains the importance of a ‘male’ comparator but does so in a new fashion. The benefit which is conferred on a pregnant woman going on maternity leave is not discriminatory as it attempts to redress certain structural
Social policy – direct discrimination – maternity benefits
inequalities which are inherent in taking such leave. At the end of the period of leave, following the payment, the woman should be in the same position as a man who did not take leave. Thus, a woman is protected. Some commentators have argued for this approach for some
Case C-218/98 Adoulaye v Renault SA, 16 September 1999
time, indeed, it was heralded by AG Tesauro in Case C-177/88 Dekker, where he argued that the protection of pregnancy should seek to
Facts
‘ensure that principle operates in substance, by permitting such ‘inequalities’ as are necessary in order to achieve equality’.
The plaintiffs in the main proceedings, before the French courts, were male workers at Renault who claimed that the provisions of a collective agreement outlining social benefits for Renault employees were contrary to Art 119 EC (now Art 141 EC). The collective agreement
Competition law – ‘agreements’ and ‘concerted practices’
provided that, ‘during the duration of the maternity leave paid as such by social security, a female employee shall receive 100% of her net salary, less the daily allowances paid by social security’ and ‘when
Case C-49/92P Commission v Anic Partecipazioni SpA, 8 July 1999
taking maternity leave, a female employee shall be granted the sum of FRF 7,500’. The plaintiffs challenged the one off payment on the basis that, whereas certain instances of discrimination such as maternity
Facts
leave, are justified because they are related to the physiological
This judgment is one of eight which form the culmination of a lengthy
characteristics of one sex, this is not the case with regard to the
saga of cases following the Commission’s decision in Polypropylene
payment in question, since, although the birth of a child concerns
(OJ, 1986, L230/1). One of the issues that was raised, inter alia, was the
women alone from a strictly physiological point of view, it is, at least
nature of an ‘agreement’ or a ‘concerted practice’ under Art 85 EC (now
equal measure, a social event which concerns the whole family,
Art 81 EC). The Commission made an initial decision that a number of
including the father.
undertakings operating within the Polypropylene market had for a number of years been operating an agreement or a concerted practice
Held
in which; they met regularly in a number of secret meetings, set target prices, put in place measures to implement the target prices, put in
The payment fell within the concept of ‘pay’ in Art 119 (now 141) and
place a system of volume control and account management,
clarified by Art 1 of Directive 75/117, as interpreted by the Court (see,
introduced simultaneous price increases, and allocated the market
for instance, Case C-342/93 Gillespie). Since the benefit paid by and
according to annual sales targets.
employer to a female employee when she goes on maternity leave is based on the employment relationship, it constitutes ‘pay’.
Regarding the existence of an agreement, the Court of First Instance considered the Commission’s findings that the behaviour be
The principle of non-discrimination presupposes that the male
categorised as an agreement and was of the view that it was sufficient
and female workers whom it covers are in comparable situations.
that the undertakings should have expressed their joint intention to
Renault have pointed out that several occupational disadvantages,
conduct themselves on the market in a specific way. It went on to
inherent in maternity leave, arise for female workers as a result of being
consider the Commission’s alternative findings on the existence of a
away from work; a woman on maternity leave may not be proposed for
concerted practice. Anic had participated in meetings between
promotion, on return her period of service will be reduced, she may not
competitiors and taken part in concerted actions the purpose of which
claim performance-related salary increases, she may not take part in
was to influence the conduct of producers on the market and to
training, and since new technology is constantly being introduced the
disclose to each other the conduct they contemplated adopting on the
adaptation of a worker returning from maternity leave becomes
market.
complicated.
The Court of First instance held that the Commission was
The principle of equal pay does not preclude the making of a
entitled to characterise the infringement as ‘an agreement and
lump sum payment exclusively to female workers who take maternity
concerted practice’ since the infringement involved at one and the
leave where that payment is designed to offset the occupational
same time factual element to be described as ‘agreements’ and factual
advantages which arise for those workers as a result of being away from
elements to be described as ‘concerted practices’.
work.
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The Commission appealed against the Court of First Instance’s judgment, and Anic cross-appealed. Anic claimed that if the Commission and the Court of First Instance view were upheld it would remove any distinction between an agreement and a concerted practice and the corresponding differences in the burden of proof. They argued
L AW existence of a concerted practice and how an undertaking can defend itself from such an accusation.
Transparency – access to Commission documents
that a concerted practice must have an additional physical element.
Held The only essential difference between lawful and unlawful conduct in
Cases C-174/98P and C-189/98P Netherlands & Van der Wal v Commission, 11 January 2000
Art 85 is between independent conduct, which is allowed, and
Facts
collusion, which is not, regardless of any distinction between types of
The Treaty of European Union incorporated Declaration (No 17) on the
collusion. Anic had taken part in an integrated set of schemes
right of access to information. In 1993, the Council and the
constituting a single infringement which progressively manifested itself
Commission approved a Code of Conduct concerning public access to
in both unlawful agreements and unlawful concerted practices. If Art 85
Council and Commission documents (OJ, 1993, L340/41).
distinguishes between ‘concerted practices’ and ‘agreements’, the aim
Implementing that the Commission adopted Decision 94/90 ECSC, EC,
is to have the prohibitions of that Article catch different forms of co-
Euratom, on public access to Commission documents. The Code of
ordination and collusion. It does not however, follow that patterns of
Conduct allows an institution to refuse access to documents where
conduct having the same anti-competitive object, each of which taken
disclosure would undermine the protection of the public interest
in isolation, would fall within the meaning of ‘agreement’ or ‘concerted
The XXIVth Report on Competition Policy, published by the
practice’, cannot constitute different manifestations of the same
Commission, stated that the Commission received a number of
infringement.
questions from the national courts. Van de Wal, a Dutch lawyer,
The requirement of independence, found in the case law, does
requested copies of a number of the Commission’s replies to such
not deprive economic operators of the right to adapt themselves
questions. On 23 February 1996, the Director General of DG IV, the
intelligently to the existing and anticipated conduct of their competitors.
Directorate General for Competition, refused the request on the
It does, however, strictly preclude any direct or indirect contact
grounds that disclosure of the letter would be ‘detrimental to the
between such operators, the object or effect of which is to either
protection of the public interest (court proceedings)’. And that:
influence the conduct on the market of an actual or potential
The points of both law and fact contained in the replies
competitor or to disclose to such a competitor the course of conduct
… must be regarded, in the context of the pending
which they themselves have decided to adopt or contemplate adopting
proceedings, as part of the national court’s file. The
on the market. It follows that a concerted practice implies, besides
Commission sent the replies to the national court and the
undertakings’ concerting together, conduct on the market pursuant to
decision whether to publish that information and/or make
those collusive practices, and a relationship of cause and effect
it available to third parties is a matter for the national
between the two.
court to which the reply is sent.
Subject to proof to the contrary, which is for the economic
It was also important that the relationship of trust between the
operators to adduce, there must be a presumption that the undertaking
Community and national courts was maintained, particularly where no
participating in concerting arrangements and remaining active on the
final judgment has yet been given.
market take account of the information exchanged with their competitors when determining their conduct on the market.
Comment In this judgment, the Court has confirmed the majority of the Court of First Instance’s findings in the case, particularly that, in a complex situation, there is not need to prove whether an arrangement can be classified as either an ‘agreement’ or a ‘concerted practice’ but simply that it involves elements of collusion which influence conduct on the market. One of the interesting parts of the improved definition is the Court’s emphasis on the necessity to show that collusion results in altered conduct on the market. The Court found that the Court of First Instance’s reasoning on this matter was flawed. It was, however, of the opinion that the Court of First Instance’s error had no effect on the operative part of the judgment. It now appears that where there is evidence of collusion, though direct or indirect contact, there will be a presumption that the collusion has resulted in altered conduct where the undertakings concerned continue to be active on the market, unless they can prove that they have distanced themselves from the concerted practice. This clarifies what the Commission must show to prove the
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Following the procedure set out in the code of conduct on public access to Commission documents (Decision 94/90), Van der Wal sent a confirmatory application to the Secretariat General of the Commission asking for the documents. The Secretariat General refused access on the basis that ‘the disclosure of the replies could undermine the protection of the public interest and, more specifically, the sound administration of justice’. The Court of First Instance dismissed the action on the basis of Art 6 of the ECHR. They stated that: The right of every person to a fair hearing by an independent tribunal means, inter alia, that both national and Community courts must be free to apply their own rules of procedure concerning the powers of the judge, the conduct of the proceedings in general and the confidentiality of the documents on the file in particular.
The Commission could rely on that right even though they were not party to the proceedings as the documents were prepared for the sole purpose of a particular court case. The applicant argued that the public interest exception did not allow the Commission to exclude a whole category of agreements from Decision 94/90. The Commission must verify that the disclosure of each document was capable of harming the public interest.
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Social policy – sex discrimination
It is true that the general principle of Community law under which every person has a right to a fair trial comprises the right to a tribunal that is independent of executive power in particular. However, it is not possible to deduce from that right, as the Court of First Instance did, that the court hearing a dispute is the only body empowered to grant access to the documents in the proceedings in question. Nor can such a general principle be deduced from the constitutional traditions common to the Member States. The documents supplied by the Commission to the national courts are often documents which it already possessed or which, although drafted with a view to a particular proceedings, merely refer to earlier documents, or in which the Commission merely express an opinion of a general nature independent of the data relating to the case pending before the national court. In relation to those documents, the Commission must access in each individual case whether they fall within the exceptions listed in Decision 94/90. Documents supplied by the Commission may also contain legal or economic analyses, drafted on the basis of data supplied by the national court. In those cases, the Commission acts as a legal or economic adviser to the national court and documents drafted in the exercise of that function must be subject to national procedural rules in the same way as another expert report, in particular as regards disclosure. Compliance with national procedural rules is sufficiently safeguarded if the Commission ensures that disclosure of the documents does not constitute an infringement of national law. In the event of doubt, it must consult the national court and refuse access only if that court objects to the disclosure of the documents.
Case C-272/97 Sirdar v Army Board [1999] All ER (EC) 928; [1999] 3 CMLR 559
Facts Mrs Sirdar had been in the British Army since 1983 and had served as a chef in a commando unit of the Royal Artillery. She was informed in February 1994 that she was to be made redundant. In July 1994, she was offered a transfer to the Royal Marines who had a shortage of chefs. When the Royal Marines became aware that Mrs Sirdar was woman, and that the offer had been made in error, they informed her that she was ineligible by reason of the policy excluding women from the unit. The Royal Marines policy of excluding women is based on the principle of ‘interoperability’, the need for every Marine, irrespective of their specialisation, to be capable of fighting in a commando unit. This policy was set up because: ‘In a small corps, in times of crisis and manpower shortage, all Royal Marines must be capable at any time of serving at their rank and skill level in a commando unit.’ After she was made redundant, Mrs Sirdar brought the matter before an industrial tribunal arguing that she had been the victim of discrimination on the basis of sex. The tribunal referred a number of questions to the Court asking if the policy was compatible with Art 224 (now Art 297 of the EC) and the Equal Treatment Directive (Council Directive 76/207/EEC).
Held The application of the principle of equal treatment for men and women is not subject to any general reservation as regards measures for the
Comment Although this case operates under the existing Code of Conduct, which is to be replaced following the Adoption of the new Art 255 of the EC Treaty, it gives an insight into the Court’s approach to the publics’ access to documents. It is clear that the Court will only allow the restriction of access where, in the particular circumstances of that case, the Commission can verify that there will be a ‘harm’ from disclosing the contents of the document. The Commission’s attempts in this case to restrict a class of documents were therefore rebuffed. The Court also placed the burden of verifying if any potential ‘harm’ exists in each case upon the Commission. This is useful as the parties do not have initial access to the documents, nor do they necessarily have a relationship with the national courts, as was important in this case. This case also reflects the continuing balancing of the relationship between the Court, the Commission and the national courts. The co-operation between the Commission and the national courts in the competition sphere informally replicates that between the Court and the national courts in Art 234 of the EC, and a similar balance of responsibilities exists. The Court makes it clear that the final decision over the release of case-specific information should rest with the national court.
organisation of the armed forces taken on grounds of the protection of public security, apart from the possible application of Art 224 (now Art 297) of the Treaty, which concerns a wholly exceptional situation. Under Art 2(2) of Directive 76/207, Member States have the option of excluding from the scope of the Directive occupational activities for which, by reason of their nature or the context in which they are carried out, sex constitutes a determining factor; it must be noted that, however, as a derogation from an individual right laid down in the Directive, that provision must be interpreted strictly. In determining the scope of any derogation from an individual right such as the equal treatment of men and women, the principle of proportionality must also be observed. That principle requires that derogations remain within the limits of what is appropriate and necessary to achieve the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public security which determine the context in which the activities in question are to be performed. The competent authorities were entitled, in the exercise of their discretion as to whether to maintain the exclusion in question of in the light of social developments, and without abusing the principle of proportionality, to come to the view that the specific conditions for deployment of the assault units of which the Royal Marines are composed, and in particular the rule of interoperability to which they are subject, justified their composition remaining exclusively male.
Comment
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It is clear from the judgment that the operation of the armed forces of
foreign players from certain matches for reasons which are not of an
the Member States is subject to the Treaty, although Art 297 could be
economic nature, which relate to the particular nature and context of
applied in exceptional circumstances.
such matches and are thus of sporting interest only, such as, for
In this case, the Court applied similar criteria to those found in
example, matches between national teams from different countries. The
Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651;
restriction on the scope of the provisions in question must remain
[1986] 3 CMLR 240. The Court referred to its decision in Johnston
limited to its proper objective and cannot be relied upon to exclude the
throughout the judgment. Again, the Court upheld a Member State’s
whole of a sporting activity. The selection rules at issue do not relate to
discretion when applying the derogation in Art 2(2) of the Equal
events between teams or selected competitors from different countries
Treatment Directive, but the Court was clearer about the operation of
comprising only nationals of the State of which the Federation which
the discretion in this particular case. The Court was of the opinion that
selected them is a member, such as the Olympic Games or certain
the particular nature of the requirement in ‘interoperability’ in the Royal
World or European championships, but reserve participation, by the
Marines, which meant that all members of that small corps should be
national federation, in certain other international events of a high level
fully combat ready no matter what their specialisation, could be
to athletes who are affiliated to the federation in question, regardless of
justified under Art 2(2). When comparing the two judgments, it is
their nationality. The mere circumstance that the placings achieved by
apparent that the Court considered that the nature of the roles played
athletes in those competitions are taken into account in determining
by combat ready members of army ‘assault units’ and armed members.
which countries may enter representatives for the Olympic Games cannot justify treating those competitions as events between national
of the RUC are ostensibly different.
Freedom to provide services – sports – national quotas for international tournaments
teams which might fall outside the scope of Community law. The selection rules at issue do not determine the conditions governing access to the labour market by professional sportsmen and do not contain nationality clauses limiting the number of nationals of other Member States who may participate in a competition. A rule requiring professional or semi-professional athletes or
Case C-51/96 Deliège v Ligue Francophone de Judo et Disciplines Associées ASBL (2000) The Times, 19 April
persons aspiring to take part in a professional or semi-professional activity to have been authorised or selected by their federation in order to be able to participate in a high level international sports competition,
Facts Ms Deliège, a former Belgian and European Judo champion, was not selected to participate in a Category A international tournament by the Belgian Federation who preferred two other athletes. Participation in these tournaments is important in gaining qualification for other
which does not involve national teams competing against each other, does not in itself, as long as it derives from a need inherent in the organisation of such a competition, constitute a restriction on the freedom to provide services prohibited by Art 59 of the Treaty.
competitions, such as the Olympic Games or World Championships.
Comment
She sought an interim order from a national court directing the
This case raises two issues surrounding the organisation of so called
Federation to complete to formalities to allow her to participate and
‘amateur’ sport. Since the Bosman ruling, professional sport has fallen
argued that the rules laid down which limited the number of athletes
squarely within the rules relating to the free movement of workers,
from each federation for participation in such tournaments were
although the Court has taken pains to recognise the special nature of
contrary to the EC Treaty. The judge sought a preliminary ruling as to
sport and the Declaration on Sport annexed to the Treaty of
whether or not rules requiring professional or semi-professional
Amsterdam. This judgment confirms that even ‘amateur’ sportspersons
sportsmen to have been authorised or selected by their national
can fall within the rules on free movement. This is a recognition that
federation in order to be able to compete in an international
those who are not paid for their sporting activities directly can make
competition and laying down national entry quotas are contrary to the
their living from sponsorship and other activities which are related to
Treaty of Rome.
their sporting activities. They will therefore be classed as workers and the free movement rules may well apply.
Held The mere fact that a sports association or federation unilaterally classifies its members as amateur athletes does not in itself mean that those members do not engage in economic activities within the meaning of Art 2 of the Treaty. Sporting activities and, in particular, a high ranking athlete’s participation in an international competition are capable of involving the provision of a number of separate, but closely related, services which may fall within the scope of Art 59 of the Treaty
The second important element of the judgement relates to rules which limit those who can take part in international competitions. The Court was of the view that where there is a need to limit entries to a competition the requirement that participants are selected by the national federation is not in itself contrary to the Treaty, but it must be noted that selection by the federation was not based on the nationality of the sportsperson but simply the participant’s registration with that federation.
even if some of those services are not paid for by those for whom they are performed. The Treaty provisions concerning freedom of movement for persons do not prevent the adoption of rules or practices excluding
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Free movement of workers – professional
E U R O P E A N basketball players – transfer rules
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player concerned. The existence of an obstacle to freedom of movement for
Case C-176/976 Lehtonen v Fédération Royale Belge des Sociétés de Basket-ball ASBL, judgment of 13 April 2000
workers having thus been established, it must be ascertained whether that obstacle may be objectively justified. Late transfers might be liable to change substantially the sporting strength of one or other team in the course of the championship, thus calling into question the
Facts
comparability of results between the teams taking part in that
Mr Lehtonen is a basketball player of Finnish nationality who played in
championship as a whole. However, measures taken by sports
Finland during the 1995/1996 season. On completion of the Finnish
federations with a view to ensuring the proper functioning of
season, he was engaged by Castors Braine, a Belgian club, to play in
competitions may not go beyond what is necessary for achieving the
the final stages of the Belgian Championship. The new contract was
aim pursued.
championship, and consequently the proper functioning of the
registered on 30 March 1996 after the player’s letter of release was
It appears from the rules on transfer periods that players from a
issued on 29 March. The FIBA rules which govern the international
federation outside the European zone are subject to a deadline of 31
transfer of players state that for national championships, clubs are not
March rather than 28 February, which applies only to players from
allowed, after the deadline fixed for the zone in question, to include in
federations in the European zone, which includes the federations of the
their teams players who have already played in another country in the
Member States. At first sight, such a rule must be regarded as going
same zone during that season. For the European zone, the deadline for
beyond what is necessary to achieve the aim pursued. It does not
the registration of foreign players is 28 February. The Belgian
appear that a transfer between 28 February and 31 March of a player
Federation’s rules require players to comply with the FIBA rules when
from a federation in the European zone jeopardises the regularity of the
obtaining a licence. The club was warned that fielding Mr Lehtonen
championship more than a transfer in that period of a player from a
without a FIBA licence might result in a penalty. Castors Braine fielded
federation not in that zone.
Mr Lehtonen and were penalised. Mr Lehtonen and the club sought interim relief and asked that the penalty be lifted. The national court asked the Court if the rules of a sports federation which prohibit a club
Comment
from playing a player in a competition if he has been engaged after a
Given the ongoing discussions over the future of transfer fees in
specified date are contrary to the Treaty of Rome in the case of a
European football, this judgment gives some background to the Court’s
professional player who is a national of a Member State of the European
jurisprudence in this area. It recognised that the limitation on the
Union, notwithstanding the sporting reasons put forward by the
player’s eligibility to play the final stages of the national competition
federations to justify those rules, namely, the need to prevent distortion
was a prima facie restriction of his free movement but that it could be
of the competitions.
justified. Some restrictions were allowed to allow the proper functioning of competitions but as it was not necessary to restrict the
Held
signing of international players until the end of March it was unlikely to
The rules relating to transfers are liable to restrict the freedom of
February.
be necessary to restrict the signing of European players by the end of
movement of players who wish to pursue their activity in another
FIFA has now recognised that it will be forced to alter the
Member State, by preventing Belgian clubs from fielding in
transfer fee system which operates between European football clubs but
championship matches basketball players from other Member States
they still intend to retain some fees for players under 24. It will be
where they have been engaged after a specified date. Those rules
interesting to see how they attempt to justify that obstacle to free
consequently constitute an obstacle to freedom of movement for
movement and if the European Commission and the European Court
workers. The fact that the rules in question concern not the
accept it. It is also possible that legal action surrounding a recent
employment of such players, on which there is no restriction, but the
signing by the Italian club Perugia may come before the European
extent to which their clubs may field them in official matches is
Court.
irrelevant. In so far as participation in such matches is the essential purpose of a professional player’s activity, a rule which restricts that participation obviously also restricts the chances of employment of the
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Article The protection of ‘without prejudice’ statements ....................................................127
Case notes Memory Corporation plc and Another v Sidhu and Another ..................................129 Nottingham City Council v Amin ............................................................................129 R v Z ........................................................................................................................130
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The protection of ‘without prejudice’ statements by James Graham, Barrister, One Raymond Buildings, Gray’s Inn, London The without prejudice rule prevents statements made in the course of settlement negotiations from being admitted in evidence. The rule only protects statements made for the purpose of a genuine attempt to compromise the dispute between the parties. Like most rules of evidence, it is subject to a number of exceptions. Such correspondence very often is headed ‘without prejudice’. The use
parties should be encouraged so far as possible to settle
of these words is not a precondition to protection where it is clear from
their disputes without resort to litigation and should not
the surrounding circumstances that the parties were attempting to
be discouraged by the knowledge that anything that is
compromise their dispute (see Phipson on Evidence, 15th edn, para 21-
said in the course of such negotiations (and that includes,
12). Similarly, the use of these words may not confer protection in
of course, as much the failure to reply to an offer as an
circumstances where there is no such attempt.
actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd
Basis of the rule: public policy and implied agreement
[1927] 44 RPC 151, 156, be encouraged fully and frankly to put their cards on the table ... The public policy justification, in truth, essentially rests on the desirability of
The rule is founded partly in public policy and partly in the implied
preventing statements or offers made in the course of
agreement between the parties that statements made in the course of
negotiations for settlement being brought before the court
the negotiations should not be subsequently relied upon in Court. At
of trial as admissions on the question of liability.’
least one of these justifications must be present. As Hoffmann LJ
Unlike other types of privilege, which may be waived by the party
explained in Muller v Linsley (1994) 139 SJ LB 43:
entitled to the privilege, without prejudice privilege can only be waived
In some cases, both of these justifications are present; in
with the consent of both parties to the communication.
others, only one or the other. So, in Cutts v Head [1984] Ch 290, the rule that one could not rely upon a without prejudice offer on the question of costs after judgment
Exceptions
was held not to be based upon any public policy. It did
The exceptions to the rule were reviewed by the Court of Appeal
not promote the policy of encouraging settlements
recently in Unilever plc v Proctor and Gamble Co (1999) The Times, 4
because, as Oliver LJ said: ‘As a practical matter, a
November. Walker LJ said that, despite the existence of without
consciousness of a risk as to costs if reasonable offers are
prejudice negotiations, the without prejudice rule does not prevent the
refused can only encourage settlement ...’
admission into evidence of what one or both parties said or wrote in the
It followed that the only basis for excluding reference to a
following situations:
without prejudice offer on costs was an implied
(1)
When the issue is whether without prejudice communications
agreement based on general usage and understanding
have resulted in a concluded compromise agreement, those
that the party making the offer would not do so. Such an
communications are admissible (see, for example, Tomlin v Standard Telephones and Cables [1969] 1 WLR 1378).
implication could be excluded by a contrary statement as in a Calderbank offer [see Calderbank v Calderbank
(2)
Evidence of the negotiations is also admissible to show that an agreement apparently concluded between the parties during the
[1976] Fam 93].
The public policy basis for the rule was considered by Lord Griffiths in
negotiations should be set aside on the ground of
Rush and Tompkins v Greater London Council [1989] AC 1280, 1299:
misrepresentation, fraud or undue influence (see, for example, the Canadian decision Underwood v Cox (1912) 4 DLR 66).
The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded upon the public
(3)
Even if there is no concluded compromise, a clear statement
policy of encouraging litigants to settle their differences
which is made by one party to negotiations, and on which the
rather than litigate them to a finish. It is nowhere more
other party is intended to act and does in fact act, may be
clearly expressed than in the judgment of Oliver LJ in
admissible as giving rise to an estoppel (see, for example,
Cutts v Head [1984] Ch 290, 306: ‘That the rule rests, at
Hodgkinson and Corby v Wards Mobility Services [1997] FSR 178, 191).
least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that
(4)
Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in
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E V I D E N C E without prejudice negotiations if the exclusion of the evidence
‘without prejudice’ privilege, seems clear. But both Lord
would act as a cloak for perjury, blackmail or other
Hailsham and Lord Simon in D v National Society for the
‘unambiguous impropriety’ (the expression used by Hoffmann
Prevention of Cruelty to Children [1977] 1 All ER 589 at
LJ in Foster v Friedland, 10 November 1992, CAT 1052). See,
602, 610 [1978] AC 171 at 226, 236 regarded it as
also, Foskett’s Law and Practice of Compromise, 4th edn, para
having developed into a new category of privilege based
9-32. The exception is only to be applied in the clearest cases of
on the public interest in the stability of marriage.
abuse of a privileged occasion (see Foster v Friedland and Fazil-Alizadeh v Nikbin, 1993 CAT 205). See, also, discussion of Dora v Simper (1999) in the Autumn 1999 Student Law Review ([1999] SLRYB 126). (5)
Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence. Lindley LJ, in Walker v Wilsher (1889) 23 QBD 335, 338, noted this exception but regarded it as limited to ‘the fact that such letters have been written and the dates at which they were written’. But occasionally, fuller evidence is needed in order to give the court a fair picture of the rights and wrongs of the delay.
(6)
In Muller v Linsley (1994) 139 SJ LB 43 (which was a decision on discovery, not admissibility), one of the issues between the claimant and the defendants, his former solicitors, was whether the claimant had acted reasonably to mitigate his loss in his conduct and conclusion of negotiations for the compromise of proceedings brought by him against a software company and its other shareholders. Hoffmann LJ treated that issue as one unconnected with the truth or falsity of anything stated in the negotiations, and as therefore falling outside the principle of public policy protecting without prejudice communications. The other members of the court agreed but would also have based their decision on waiver.
(7)
The exception (or apparent exception) for an offer expressly made ‘without prejudice except as to costs’ was clearly recognised by this court in Cutts v Head, and by the House of Lords in Rush and Tomkins, as based on an express or implied agreement between the parties. It stands apart from the principle of public policy (a point emphasised by the importance which Pt 44.3(4) of the new Civil Procedure Rules attach to the conduct of the parties in deciding questions of costs). There seems to be no reason in principle why parties to without prejudice negotiations should not expressly or impliedly agree to vary the application of the public policy rule in other respects, either by extending or by limiting its reach. In Cutts v Head, Fox LJ said (at p 316): ... what meaning is given to the words ‘without prejudice’ is a matter of interpretation which is capable of variation according to use in the profession. It seems to me that, no issue of public policy being involved, it would be wrong to say that the words were given a meaning in 1889 which is immutable ever after.
(8)
In matrimonial cases, there has developed what is now a distinct privilege extending to communications received in confidence with a view to matrimonial conciliation: see Re D [1993] 2 All ER 693, 697, where Sir Thomas Bingham MR thought it not: ... fruitful to debate the relationship of this privilege with the more familiar head of ‘without prejudice’ privilege. That its underlying rationale is similar, and that it developed by way of analogy with
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Statements which are not admissions In Muller v Linsley (see above), Hoffmann LJ was considering a situation in which the public policy but not the implied agreement justification for the without prejudice rule applied. In such a situation, Hoffman LJ seemed to say that there was no public policy requiring the protection of statements which were not admissions: If one analyses the relationship between the without prejudice rule and the other rules of evidence, it seems to me that the privilege operates as an exception to the general rule on admissions (which can itself be regarded as an exception to the rule against hearsay) that the statement or conduct of a party is always admissible against him to prove any fact which is thereby expressly or impliedly asserted or admitted. The public policy aspect of the rule is not in my judgment concerned with the admissibility of statements which are relevant otherwise than as admissions, that is, independently of the truth of the facts alleged to have been admitted ... This is not the case in which to attempt a definitive statement of the scope of the purely convention based rule, not least because, as Fox LJ pointed out in Cutts v Head at p 316, it depends upon customary usage which is not immutable. But the public policy rationale is, in my judgment, directed solely to admissions. In a case such as this, in which the defendants were not parties to the negotiations, there can be no other basis for the privilege.
Hoffmann LJ concluded that since the documents were relevant to the reasonableness of the settlement in prior proceedings rather than as admissions, there was no public policy reason to refuse to admit them. On the face of it, this is a significant reduction of the protection afforded to without prejudice communications. In Unilever plc v Proctor and Gamble Co, the Court of Appeal accepted that it was difficult to completely reconcile the decisions in Muller, Cutts v Head and Rush and Tompkins. In giving effect to these decisions, Walker LJ said that protecting admissions against interest is the most important practical effect of the rule. It would, however, create huge practical difficulties to allow cross-examination in relation to some but not all of the statements made in the course of a without prejudice meeting. The public interest would also be undermined if such erosion of the without prejudice protection was to be allowed. It would also be contrary to the spirit of the changes of the Civil Procedure Rules to impede settlement of disputes: The expansion of exceptions should not be encouraged when an important ingredient of Lord Woolf’s reforms of civil justice is to encourage those who are in dispute to engage in frank discussions before they resort to litigation
In any event, it would seem that the reasoning of Hoffmann LJ in Muller is confined to the public policy rather than implied agreement basis for without prejudice protection.
E V I D E N C E
Case notes
interrogation] did exist in the days of Sir William
by James Graham, Barrister, One Raymond Buildings, Gray’s Inn, London
compelled to answer interrogatories or to give evidence
Blackstone. But, I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be himself to make him prove his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him.
Rice v Gordon, Emanuel v Emanuel and Distributori Automatici Italia
Privilege against self-incrimination
SpA v Holford General Trading Co Ltd provide old and modern
Memory Corporation plc and Another v Sidhu and Another (1999) The Times, 3 December
self-incrimination for perjury committed in the same proceedings in
authority to support the proposition that there is no privilege against which the privilege is sought to be asserted. That rationale of these decisions was that if privilege against self-incrimination is allowed in such cases the court would be offering ‘an inducement to a defendant
Facts The claimants obtained an asset-freezing order against the first defendant. The order also required the first defendant to swear an affidavit disclosing his assets. The defendant had then been ordered to attend for cross-examination as to his assets. It was possible that the evidence adduced in cross-examination would be used to bring contempt proceedings against the first defendant. The first defendant sought to rely upon the privilege against self-incrimination and accordingly to decline to answer such questions. The claimants, however, claimed that there was an exception from the privilege against self-incrimination where the contempt arose out of actions in
to commit perjury in an early stage of the cause, in order to prevent the court from administering justice in the suit’ (Rice v Gordon). It has, however, been doubted that Rice v Gordon remains good law (see Rank Film Distributers Ltd v Video Information Centre [1982] AC 380, pp 413–14, per Bridge LJ). It is also difficult in the light of the instant decision to understand why there should be such an exception to privilege in respect of perjury but not contempt proceedings. It should also be remembered that the protection afforded against self-incrimination is restricted by s 72 of the Supreme Court Act 1981 in intellectual property cases.
the same case.
Held
Effect of admission of evidence on fairness of proceedings
Following Cobra Golf Inc v Rata [1998] Ch 109, proceedings for civil contempt are proceedings for ‘recovery of a penalty’ for the purpose of s 14 of the Civil Evidence Act 1968 and, accordingly, the privilege of self-incrimination applies to them. The privilege against self-incrimination is available in respect of
Nottingham City Council v Amin (1999) The Times, 2 December, QBD
the risk of contempt proceedings in this action. Rice v Gordon (1843)
Facts
13 Sim 580; Emanuel v Emanuel [1982] 1 WLR 669; Distributori
A cab driver was prosecuted for plying for hire without a licence. The
Automatici Italia SpA v Holford General Trading Co Ltd [1985] 1 WLR
defendant’s cab was licensed for an adjoining area but not the city
1066 not followed. These decisions concern exemption from privilege
centre where he was driving when he was stopped by two plain clothes
against self-incrimination in relation to perjury rather than contempt.
police officers. The light on his cab was not on but when the officers
The defendant is to be subject to cross-examination which might or might not lead to proceedings for contempt. There is no valid
asked him to drive them to a specified destination, he agreed and did so for a fare.
distinction (as far as the privilege against self-incrimination was
The stipendiary magistrate had dismissed the information on the
concerned) between the giving of evidence at this early point in time or
ground that the evidence against the defendant was excluded in his
in proceedings for contempt themselves. It follows from the fact that the
reasonable discretion pursuant to s 78 of the Police and Criminal
defendant is not a compellable witness in any contempt proceedings
Evidence Act 1984 (‘PACE’). This discretion was exercised by reference
that he should be entitled to the privilege of self-incrimination in these
to Art 6(1) of the European Convention for the Protection of Human
proceedings, particularly as he is sought to be cross-examined on an
Rights and Fundamental Freedoms (1953, Cmd 8969).
affidavit sworn pursuant to an order of the court.
Comment
Held Entrapment is not a defence to a criminal charge.
There is a prima facie privilege against self-incrimination in respect of
There is a discretion under s 78 of PACE to refuse to allow
proceedings for contempt (see Arlidge, Eady and Smith, Contempt, 2nd
evidence to be admitted if the court is satisfied that, having regard to all
edn, pp 171–78). In Comet Products UK Ltd v Hawkex Plastics Ltd
the circumstances, including those in which the evidence was
[1971] 2 QB 67, p 74, Lord Denning MR said:
obtained, its admission would have such an adverse effect on the
I am prepared to accept that such a rule [compulsory
fairness of the proceedings that it ought not to be admitted.
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E V I D E N C E Regard should be had to the international obligations of the
young women which have gone to separate trials. In three of the trials,
United Kingdom expressed in the European Convention when
the defendant was acquitted. In the fourth trial he was convicted. In
exercising this discretion under s 78 (see R v Khan [1997] AC 558).
each trial, the defendant did not dispute that sexual intercourse had
The facts here could not be construed as showing the defendant in any way being pressurised into committing the offence.
taken place between him and the respective complainants. The Crown wished to call the four complainants in the previous trials to give
The admission of the evidence would not have such an adverse
evidence of the defendant’s conduct towards them to negate the
effect on the fairness of the proceedings that it should be excluded.
defence of consent or belief as to consent in respect of the present
Accordingly, the defendant was not denied a fair trial by admitting this
charge of rape.
evidence. It followed that the stipendiary magistrate erred in law in ruling as he did. The case was remitted with a direction to convict.
It was admitted that the evidence of the earlier complainants was relevant to the question of whether he was guilty of the offence of rape with which he has been charged in this case. The defendant, however, asserted that the similar fact evidence was inadmissible
Comment Where the commission of a crime involves the participation not only of the defendant but also of a person acting in a law enforcement role, difficult questions arise when considering whether it is fair to the defendant to admit such evidence.
because it showed that he had in fact been guilty of the earlier offences of which he had been acquitted.
Held (1)
The principle of double jeopardy operates to cause a criminal
The decisions of English courts show that where the defendant
court in the exercise of its discretion to stop a prosecution
only committed the crime because he had been incited, persuaded or
where the defendant is being prosecuted on the same facts or
pressurised into doing so by a law enforcement officer it is generally
substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal (or conviction).
unfair to admit evidence so obtained. Where, however, a law enforcement officer merely gave a defendant an opportunity to break
(2)
Provided that a defendant is not placed in double jeopardy as
the law, it is considered be unobjectionable to convict where the
described in (1) above evidence which is relevant on a
defendant freely took advantage of the opportunity, in circumstances
subsequent prosecution is not inadmissible because it shows or
where it appeared that he would have behaved in the same way if the
tends to show that the defendant was, in fact, guilty of an offence of which he had earlier been acquitted.
opportunity had been offered by anyone else (see Director of Public Prosecutions v Marshall [1988] RTR 384; R v Christou [1992] QB 979;
(3)
It follows from (2) above that a distinction should not be drawn
R v Smurthwaite [1994] 1 All ER 898; Ealing London Borough Council
between evidence which shows guilt of an earlier offence of
v Woolworth’s plc [1995] Crim LR 58; R v Latif [1996] 1 WLR 104; and
which the defendant had been acquitted and evidence which
Taunton and Deane Borough Council v Brice (1997) 31 Licensing Rev
tends to show guilt of such an offence or which appears to
24.
relate to one distinct issue rather than to the issue of guilt of such an offence. G (An Infant) v Coltart [1967] 1 QB 432
In Teixeira De Castro v Portugal (1998) 28 EHRR 101, the
overruled.
Human Rights Court considered a situation in which the enforcement officers’ activities had gone beyond those of undercover agents since
(4)
Evidence of the earlier complainants was therefore admissible
they had not confined themselves to investigating ‘in an essentially
as similar fact evidence subject to the judge’s discretion to
passive manner’ but had instigated the offence. Since there was nothing
exclude it after weighing its probative value against its
to suggest that, without their intervention, it would have been
prejudicial value or under s 78 of the Police and Criminal
committed, the Strasbourg Court considered that such intervention and its use in the criminal proceedings deprived the defendant of a fair trial
Evidence Act 1984. The decision of the Court of Appeal was therefore reversed.
and accordingly violated of Art 6(1). Reliance was placed in the present case upon Teixeira De Castro. The Lord Chief Justice observed that the facts in Teixeira De Castro were special and was not prepared to require the question of whether the investigation was active or passive to be determinative of the fairness of the trial.
Comment The objection to the admissibility of this evidence was based on Lord MacDermott’s statement in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458, PC, p 479, that the effect of a verdict of acquittal pronounced by a competent court after a lawful trial is not restricted to the fact that the person acquitted cannot be tried
Evidence of previous acquittals
again for the same offence. He said that it is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
R v Z [2000] 3 WLR 117; [2000] 3 All ER 385, HL
Thus the ‘rule in Sambasivam’ prevented the prosecution from making any assertion which was inconsistent with a previous acquittal. The judgment of the Board in Sambasivam concerned an
Facts The defendant was charged with the offence of rape of a young woman. The defendant did not dispute that he had sexual intercourse with her but his defence was that she consented or that he believed she consented. The defendant had faced four previous allegations of rape of
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appeal from the Court of Appeal of the Federation of Malaya. The appellant had been involved in a fight with three men who alleged that the appellant had drawn and pointed a revolver at them. It was also alleged that the revolver was loaded with six rounds and that four more rounds were found in the appellant’s bag. Two charges were brought against the appellant. The first
E V I D E N C E charge was that he was carrying a .38 revolver which he was not duly
not think that it is obligatory on the prosecution, in order
licensed to carry. The second charge was that of having possession of
to be on the safe side, to put into an indictment all the
10 rounds of .38 ammunition without lawful authority therefor.
charges that might conceivably come within rule 3,
The appellant was tried on both charges. On the second charge,
leaving it to the defence to apply for separation. If the
that relating to the possession of ammunition, he was acquitted. On the
prosecution considers that there ought to be two or more
first charge, that relating to the carrying of the revolver, the judge
trials, it can make its choice plain by preferring two or
ordered a new trial. At the new trial, a statement which purported to
more indictments. In many cases, this may be to the advantage of the defence.
have been made by the appellant but which he denied making and which had not been put in evidence on the first trial was relied on by
As explained by Lord Hope, the present case is a good illustration of
the prosecution. In the statement, the appellant said that he was
unsatisfactory result that would be been achieved under the rule in
carrying a fully loaded revolver and extra rounds of ammunition. At the
Sambasivam :
conclusion of the new trial, the appellant was found guilty and the
It is accepted by the defendant that the evidence of the
Court of Appeal dismissed his appeal.
three complainants in respect of whose complaints he
It was unanimously agreed that it was right to set aside the
was acquitted is relevant to the question whether he is
conviction in Sambasivam but for different reasons. The carrying of the
guilty of the offence of rape with which he has been
revolver and the ammunition constituted the same incident and, having
charged in this case. This is because the similar fact
been acquitted of carrying the revolver (in which some of the
evidence of these complainants, if accepted by the jury,
ammunition was alleged to have been loaded), it was objectionable
has a direct bearing on the allegation which the Crown
under the rule against double jeopardy to be subsequently tried for
makes in this case that the defendant’s intercourse with C
carrying the ammunition. Otherwise, the appellant would be charged
was without consent. Furthermore, the issue in the
on the same facts as gave rise to the earlier prosecution.
present case is not whether the defendant is guilty of
The rule in Sambasivam was therefore not necessary because
having raped the three other complainants. He is not
the defendant was adequately protected by the double jeopardy rule
being put on trial again for those offences. The only issue
and the rules on the admissibility of a defendant’s previous conduct. In
is whether he is guilty of this fresh allegation of rape. The
addition, there was a discretion to exclude evidence after weighing its
guiding principle is that, prima facie, all evidence which
probative value against its prejudicial nature and under s 78 of the
is relevant to the question whether the accused is guilty or
Police and Criminal Evidence Act 1984.
innocent of the offence charged is admissible. It would
It should be noted that the principle of double jeopardy is
seem to follow that the evidence of these three
subject to the qualification as to special circumstances explained by
complainants should be held to be admissible in this
Lord Devlin in Connelly v Director of Public Prosecutions [1964] AC
case, subject to the discretion of the trial judge to exclude
1254, p 1360:
unfair evidence under s 78 of the Police and Criminal Evidence Act 1984.
But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a
It is in the very nature of similar fact evidence that on the first occasion
particular case be special circumstances which make it
and perhaps some subsequent occasions there will be insufficient
just and convenient in that case. The judge must then, in
evidence and if tried the defendant may have been acquitted. There
all the circumstances of the particular case, exercise his
may however come a time when the accumulating evidence is
discretion as to whether or not he applies the general
sufficient to convince a jury of his guilt and it is right that such evidence
rule. Without attempting a comprehensive definition, it
should be allowed to be adduced (subject to the safeguards discussed
may be useful to indicate the sort of thing that would, I
above).
think, clearly amount to a special circumstance ... I do
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Articles Same sex couples – the times they are a-changing? ................................................134 A reforming agenda..................................................................................................136 Summer snapshots ..................................................................................................138
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Same sex couples – the times they are a-changing? by ME Rodgers, Senior Lecturer in Law, Nottingham Trent University Fitzpatrick (AP) v Sterling Housing Association (1999) The Times, 2 November, HL, www.open.gov.uk
Introduction Whilst the above case may be seen as being of more relevance to land lawyers, the opinions of the Law Lords cast light on the way in which judicial attitudes to same sex couples are developing. immediately before his death, then ... [they] shall
The case, together with what it says about ‘the family’ will be
be entitled to an assured tenancy of the dwelling
considered, as will other changes that reflect a greater judicial and
house by succession.
societal tolerance to relationships that do not fit the traditional, nuclear family model of heterosexual parents (married of course) with 2.4 children.
Held The House of Lords (3:2) upheld the appeal and granted the appellant
Facts
an assured tenancy on the basis that he fell within the definition of the
The respondent had been the landlord for John Thomson for 22 years,
spouse.
deceased’s family, but had failed to come within the definition of a
during which time Mr Thomson was a statutory or protected tenant
It was unsurprising that the argument that a homosexual partner
within the terms of the relevant Rent Act. For the 18 years preceding Mr
could be classed in the same way as a spouse failed in the House of
Thomson’s death in 1994, he had lived with the appellant in what was
Lords. As Lord Clyde stated in relation to para 2:
accepted in the facts to the court as a ‘long standing, close, loving and
The language plainly indicates a biological distinction
faithful monogamous homosexual relationship’. As a result of Mr
between the sex of the original tenant and that of the
Thomson’s death, the appellant claimed to be entitled to succeed to the
successor. The careful use of the words ‘his’ and ‘her’ and
statutory tenancy under the Rent Act 1977 (as amended).
the phrase ‘wife or husband’ point to a heterosexual relationship and I cannot read the language as if it had
The claim The claim to a statutory tenancy by the appellant was argued under two different heads. The first, that the appellant was entitled to succeed as a ‘spouse’, as Sched 1 of the Rent Act 1977 provides: 2(1)
The surviving spouse (if any) of the original tenant, if residing in the dwelling house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling house.
(2)
said ‘his or her partner’.
Lord Clyde was also able to draw on European precedent to support the lack of comparability between same sex couples and heterosexual relationships: ... in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of the opposite sex (citing the European Court of Justice in Grant v South West Trains Ltd [1998] 3 BHRC 578, p 594).
However, these statements do not suggest that stable homosexual
For the purposes of this paragraph, a person who
relationships will never be analogous to marriage or heterosexual
was living with the original tenant as his or her
cohabitation. The European Court is not bound by its own decisions so
wife or husband shall be treated as the spouse of
may easily be persuaded to a view contrary to that in Grant. Equally,
the original tenant.
the interpretation of para 2 is clearly dependent upon the precise
The second head, which was argued in the alternative, was that the
language employed. Were the language to be vague in other
appellant was a member of the deceased’s family and covered by para
legislation, a different interpretation could be reached.
3:
Turning to the interpretation of para 3 of the Rent Act 1977, 3
Where para 2 above does not apply, but a person
there was less difficulty in deciding that a homosexual relationship
who was a member of the original tenant’s family
could fall within the definition of ‘family’. In establishing that the
was residing with him in the dwelling house at
appellant was indeed family, Lord Slynn stated:
the time of and for the period of two years
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...was the appellant ... a member of the family..within the
area. The recently appointed President of the Family Division, Dame
meaning of this Act? I stress ‘within the meaning of this
Butler-Sloss stated that there should be no automatic rejection of same
Act’ since it is all that your Lordships are concerned with.
sex couples as adopters: ‘... both parents in a family [are] important. But
In other statutes, in other contexts, the words may have a
[this] does not necessarily mean the traditional model of a man and a
wider or a narrower meaning than here ... the word
woman’ (see, further, (1999) The Times, 16 October).
‘family’ is used in a number of different senses. If ‘family’
The only difficulty being currently that, unless a couple
could only mean a legal relationship ... then the appellant
adopting a child are married, they are unable to adopt jointly (s 14 of
would obviously fail. Over the years, however, the courts
the Adoption Act 1976). The adoption must be made in favour of one
have held that this is not so ... Given that the word is to
of the couple, with a later application for a joint residence order under
be applied flexibly, and does not cover only legally
the s 8 of the Children Act 1989. Despite this legal difficulty, there are
binding relationships, it is necessary to ask what are its
instances of adoption orders in favour of a homosexual/lesbian adult in
characteristics. The hall marks of the relationship were
the law reports – see, for example, In Re W (A Minor)
essentially that there should be a degree of mutual
(Adoption:Homosexual Adopter) [1998] Fam 58.
interdependence, of the sharing of lives, of caring and love, of commitment and support.
That it is not just the judiciary who are changing with the times is evidenced from other proposals for legal change. The government
The concept of sharing was also referred to by Lord Nicholls, whilst
has announced its intention to introduce a Sexual Offences
Lord Clyde referred to the bond being ‘one of love and affection, not of
(Amendment) Bill, to reduce the age of consent for homosexuals. It will
a casual or transitory nature, but in a relationship which is permanent
also enable same sex couples to claim against the Criminal Injuries
or at least intended to be so’. As the appellant had proven these factors,
Compensation Board in respect of fatalities which presently is restricted
the relationship was held to fall within the definition of family for the
to spouses and heterosexual couples. This may say little about family
purposes of the Rent Act 1977 and the appellant gained his tenancy of
law per se, but indicates the need to consider equality and potential
the dwelling house.
discrimination where same sex couples are concerned. Add to this the introduction of the Convention for the Protection of Human Rights and
Comment It would be easy to consign this case to the land lawyers, and restrict it to its individual facts. It is evident that this is what the majority of the House of Lords were trying to achieve. However, the case is unlikely to remain hidden in the law reports for long. First, it is of interest in assisting the student comprehend what is meant by the term the family, and the opinions highlight very clearly that no one definition can ever be claimed to all encompassing over different legislative provisions. Secondly, and as a result of the first point, the definition provided by the House of Lords, could be applied within other, more far reaching legislation. Whilst it is evident from the opinions of the Law Lords that they were trying to restrict the inclusion of a homosexual relationship as ‘family’ to the Rent Act 1977, they did not in fact do so. Lord Slynn stresses that the definition should be within the 1977 Act but continued ‘In other statutes, in other contexts the words may have a wider or a narrower meaning than here’. This does not limit the definition to housing law, but simply suggests that ‘family’ could mean more, less or exactly the same; as he goes on to suggest: ‘In other statutes, the same meaning may or may not be the right one.’ Thirdly, the fact that the judiciary appear to have moved with the times, and the greater acceptance of same sex relationships could influence government to extend rights in existing, or future, legislation where currently a narrow interpretation of ‘family’ is used or required. Indeed, Fitzpatrick is not the only instance of judicial attitude in this
Fundamental Freedoms, and you have a recipe for change. The drive for equality is also impacting upon financial awards in the event of relationship breakdown, and here it will potentially affect any cohabiting couple, not simply heterosexual ones. As students should be aware, the Matrimonial Causes Act 1973 and the Domestic Proceedings and Magistrates’ Court Act 1978 enable a spouse (or exspouse in the former case) to claim financial and property awards (again, the latter only in the MCA). This cause of action is not available to cohabitants. The Law Society has recently called for increased legal protection for unmarried couples partly due to the fact that ‘many unmarried couples who live together wrongly assume that they have similar legal rights to those who are married’ and that ‘the law as it stands is outdated and unfair’ (Cohabitation: The Law Society’s Proposals for Reform of the Law, available via www.lawsociety.org.uk). In their proposals, The Law Society does not seek to limit the availability of financial relief (and protection) to heterosexual couples due to the difficulties in distinguishing the nature of the actual relationship, but aims to extend the amount of protection whilst ‘not equating the remedies available with those available for married couples’. This is not to suggest that the near future heralds the notion of same sex marriages – this change may be some way off. However, once there is a wide acceptance of the concept of same sex couples being ‘family’ and having more traditional ‘family rights’, it is perhaps only a small step to a complete redefinition of marriage in England and Wales.
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A reforming agenda by ME Rodgers, Senior Lecturer in Law, Nottingham Trent University The government is continuing to press ahead with changes in the area of family law, with reforms to the Child Support Acts 1991 and 1995, a consultation paper on physical punishment of children, and the Children Act 1989 with reference to parental responsibility. The child support reforms
175 or more (6)
One-half
If the applicable fraction is one-half in relation to
The Child Support, Pensions and Social Security Bill was laid before
any qualifying child in the care of the person with
Parliament on 1 December 1999 and has completed both its first and
care, the total amount payable to the person with
second readings and has been scrutinised by Standing Committee.
care is then to be further decrease by £7 for each
Insofar as child support is concerned, the Bill will radically alter the
such child [Sched 1 para 7].
method of calculation of child support from the formulaic approach of
Whilst it cannot be denied that it is appropriate to deduct from the total
the 1991 Act. The intention being to replace ‘an unworkable policy
child support payable where the non-resident parent shares some of the
with a workable new system based on a simple method for deciding
caring role, the fractions are less than simplistic. The additional
how much an absent father should pay’ (Press Release, DSS 1 July 1999
reduction where the non-resident parent has care of the child for half
Ref 99/151). The method of calculating child support in future will be
the year (or more) adds extra complications to the calculations. As these
to deduct a flat percentage from the absent parent’s (now termed non-
reductions can be based on anticipated care, there is scope for
resident parent) net pay, and the more children that need support, the
underpayment and a resultant claw back of missing child support.
higher percentage will be deducted. The percentage rates start at 15%
The expectation from the White Paper preceding this Bill was
for one child and go to a high of 25% for three or more children.
that less child support would be payable than under the 1991 formula,
Where a non-resident parent has a second family, a double calculation
and consequently absent parents would be more than happy to pay to
will be required. The Bill states it thus:
support their children. It was also the case that absent, or rather the
If the non-resident parent also has one or more relevant
now non-resident parent, would be able to calculate their own child
other children, the appropriate percentage referred to
support obligations, perhaps with the Child Support Agency acting to
[above] is to be applied instead to his net weekly income
confirm the mathematics. However, from the provisions above,
less:
simplicity is somewhat lacking from the reforms. In addition, conflict is 15% where he has one relevant child
likely to arise from the fact that the income of the caring parent is
20% where he has two relevant other children
ignored. Many non-resident parents may feel aggrieved that a perhaps
25% where he has three or more relevant other
more affluent caring parent will escape assessment.
children [Sched 1, para 2].
The means of enforcing compliance with the new payment
Hence, the non-resident parent will have to establish what their net pay
regime may also seem Draconian. Where non-resident parents have
is, deduct the relevant percentage for the number of children in the
made false representations in respect of required information, they will
second family, and then, from the resulting figure, establish how much
fact prosecution in the Magistrates’ Court with a maximum fine at level
child support is payable to the first family by applying the appropriate
3 on the standard scale. Underpayment of child support, wilful refusal
percentage. The result being that the second family is deemed to be
or culpable neglect to pay will result in possible disqualification from
more important, since they will get a higher share of the net pay cake.
driving for up to two years duration. The connection between payment
This is despite statements from some quarters that the first family should
and driving is unclear – perhaps it is more cost effective to ban non
take priority.
resident parents from driving rather than imprison or fine them. Or
Where the non-resident parent has more than one child, but
perhaps the Department of Social Security were placed under pressure
they live with different mothers or carers, the support payable is divided
from the Department of Environment and the Regions to actively
pro rata. In a two child situation, this would result in each child getting
promote ‘green’ transport measures!
a 10% share of the child support due. If a non-resident parent provides
The implementation of the reforms will not occur until late
some care, perhaps on overnight contact visits, there may be a
2001, and even then only for new cases. There is to be a gradual
reduction in the child support payable. The method of establishing how
transfer of existing cases to the new regime. However, given the
much of a reduction is to be made is set out in the Bill:
debacle of the implementation of the 1991 Act and the plan for all
(4)
The amount of that decrease for one child is set
child support to be within its remit, a full changeover seems unlikely.
out in the following Table:
Protecting children, supporting children
Number of nights
Fraction to subtract
52 to 103
One-seventh
104 to 155
Two-sevenths
Published on 18 January 2000 by the Department of Health, this
156 to 174
Three-sevenths
Consultation Paper is a response to the European Court of Human Rights decision in A v UK (100/1997/884/1096) that a boy who had
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under the Offences Against the Person Act 1861.
step father had been subject to ‘inhuman or degrading treatment’ in
The final option is to clarify and possibly restrict those
contravention of Article 3 of the European Convention of Human
individuals who could claim the defence of reasonable chastisement.
Rights. The existence of the defence of ‘reasonable chastisement’ in
The paper questions:
English criminal law meant that the law did not protect the victim from
Whether the defence should be available to only those
such treatment.
with parental responsibility or whether it should be
The Paper makes it clear that there is not going to be a total ban on physical punishment: ... it would be quite unacceptable to outlaw all physical punishment of a child by a parent. Nor, we believe,
available, as now, to those in loco parentis ... If the defence is available to those in loco parentis, should it be under an implied delegation from parents … or should it be under an express delegation … [para 5.13].
would the majority of parents support such a measure
The paper identifies some of the difficulties with this approach: for
[para 2.14].
example, the fact that unmarried fathers may not have parental
However, what it seeks to do is to limit the defence of reasonable
responsibility, or perhaps assume they do have it when they do not. The
chastisement and to establish where to draw the line as to what forms
difficulties it may cause in reconstituted families, where a step parent
of physical punishment are acceptable. The consultation is also set
would not be able to chastise a step child, but could do so to their own
within the context of government attempts to support the family by
child. In addition, the position of relatives may be undermined if they
means of parenting telephone helplines, the Sure Start scheme (see
could not chastise without express authority.
Supporting Families, Nov 1998) and the new National Family and Parenting Institute. The reforms for discussion are set out in three different options.
Change is inevitable, but it remains to be seen which option will be the favoured one. Replies to the consultation paper are required by 21 April 2000.
However, the paper makes clear that when considering: ... whether or not the physical punishment of a child constitutes ‘reasonable chastisement’, a court should always have regard to the [following factors: •
the nature and context of the treatment;
•
its duration;
•
its physical and mental effects; and in some cases,
•
the sex, age and state of health of the victim.] [See paras 5.3 and 5.4.]
The first option to be considered is whether the above list of factors needs to be expanded upon. The examples given include making the use of implements such as belts or slippers automatically unreasonable. Or additionally, making it automatically unreasonable to use any punishment which causes, or is likely to cause injury to the head (including damage to the brain, eyes and ears). One possible difficulty here may be how to establish that any injury to the brain, eyes or ears was actually caused by physical punishment as opposed to simple
Parental responsibility In March 1998, a consultation paper, Procedures for the Determination of Paternity and on The Law on Parental Responsibility for Unmarried Fathers, was issued by the Lord Chancellor’s Department. The thrust of the paper regarding unmarried fathers being that automatic refusal of parental responsibility because of status was discriminatory and did not reflect the perceptions of many unmarried fathers that they had rights in respect of their children. The suggestion that the registration of the child’s birth with the name of the father present on the certificate should give the father parental responsibility has been accepted. However, as stated in the consultation paper on physical chastisement, this measure ‘will be introduced when parliamentary time allows’ (Append B). This could mean a long wait for change, given that parental responsibility is not a major election issue.
parental neglect, which is more likely to result in civil care proceedings. The second option is to limit the number of offences to which the defence of reasonable chastisement can apply. Here, the proposal being to restrict, for example, the defence to the lesser assault charges
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Summer snapshots by ME Rodgers, Senior Lecturer in Law, Nottingham Trent University The summer period has not produced a single issue of burning importance within the area of family law. This is not to say that the law and the law making machine has actually taken time off. Several matters, which will be of future note, have started to raise their heads. Any student studying the subject should pay close attention to
The ability to take on board responsibility held by a parent in terms of their child support liability is important when a court is called upon to
these issues since they will no doubt form part of the Family Law syllabus, or find their way onto next summer’s examination paper.
adjudicate on ancillary relief issues. Generally, it is to be hoped that a couple will have already negotiated on these issues and will come to the court with the areas of dispute considerably narrowed down. To this end, and to ensure a level of consistency with civil matters generally,
Child support The Child Support, Pensions and Social Security Act (discussed at (2000) 30 SLR 52) has completed its passage through the parliamentary process and is on the statute book. Implementation of the reforms of child support are not likely until 2002, the reforms being such that pilots will need to be initiated to ensure that a national roll out of the changes will be successful. Additional time will also be needed to complete the training that Child Support Officers will certainly require. The Act’s most commonly known effect will be to remove the disliked formula from the Child Support Act 1991, and replace it with a percentage deduction dependent upon the number of relevant children. It is also generally appreciated by lawyers and legal academics that the income of the parent who is caring for the child will not be taken into account, in contrast to the 1991 Act’s formula. This fact is perhaps less well known by the ‘person on the London Underground’, and will certainly be an issue of dispute between a child’s parents when the new principles are brought into play. Help may be at hand in limiting a small number of disputes due to the Lord’s introduction of a cap on the maximum amount of child support payable under the new regime. This cap ranges from £300 to £500 depending on the number of children concerned. This also leaves the door open for court orders to be sought if the non-caring parent is in a very high income bracket, these orders being by way of top up. It is also foreseeable that claims for nonperiodic payments, or property adjustments in favour of the child(ren) will still continue in the courts. What has been ignored by the spin machine is the fact that the ability to avoid the remit of the Child Support Agency by parents who are not on welfare benefits will be reduced. Under the Child Support Act 1991, a court order can still be obtained where the parents have a written agreement as to the amount of child support payable, and wish to have that agreement endorsed in a court consent order (see s 8 of the Child Support Act 1991 and the amendments to s 4 to be made by the new Act). The new Act will permit any such court order to be overturned by a non-welfare dependant parent applying to the Agency after the court order has been in existence for a minimum of one year. Hence, as suggested by Mark Harper (‘New law interferes with parents’ rights’ (2000) The Times, 25 July): A carefully crafted agreement covering all aspects of finances and reached after months of mediation or negotiation with the help of solicitors, will be wrecked … It will make it harder to agree division of capital and of the sale proceeds of the family home.
Ancillary relief
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the Ancillary Relief Pilot scheme has now been applied on a national scale. The parties to proceedings will also be required to comply with the steps outlined in the ‘Pre-Action Protocol’ (Practice Direction, 25 May 2000, available via www.courtservice.gov.uk) which covers issues such as disclosure and the nature of the factual evidence needed. The purpose of the new Ancillary Relief procedure will be to ensure the court has a greater control of the proceedings, and that the court is only involved in real disputes between the parties – issues should be agreed as far as is possible. The production of written costs estimates will also be required – an attempt to stop litigation costs exceeding the value of the property in question. When courts are called upon to decide issues in ancillary relief, s 25 of the Matrimonial Causes Act 1973 will still apply. However, students should note that the House of Lords has recently heard a case dealing with the interpretation and application of the s 25 guidelines. The case of White v White was heard in July 2000 and judgment is expected in October 2000. The issue being a claim by the wife to an equal share in the assets where both parties to the marriage had business interests, those interests were pooled and in effect they allegedly acted as equal partners in the business venture. The claim in The Times (‘Divorced wife claims half of £4m estate’ (2000) 3 July 2000) that ‘if the Lords rule in her favour, the case could pave the way for an American-style “equal share” principle in divorce cases’ is perhaps unrealistic – what can be expected is further clarification of s 25 where ex spouses have had, or continue to have, business interests in common.
Human rights and transsexuals It would be naïve to ignore the fact that the Human Rights Act 1998 (HRA) is due to come into force in October 2000. Lawyers are getting ready to bombard the courts with claims under the European Convention of Human Rights and Fundamental Freedoms in many different areas of the law. Within family law, changes both of a subtle and dramatic nature will no doubt result. Subtle changes may include the emphasis in cases where contact to a child following marriage or relationship breakdown is requested. Currently, the courts’ approach this issue on the basis that contact is the right of the child (see, for example, M v M (Child: Access) [1973] 2 All ER 81), and that contact should be ordered unless clearly contrary to the child’s welfare under the best interests test in the Children Act 1989. However, post-HRA, the courts will have to ensure that they see contact as a right of the parent as well as the child (see, for example, Peter Whitear v UK [1997] 3
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EHRLR; and B v UK (1988) EHRR 87). The court will still be able to balance the competing rights, and this will still be on the basis of the
the existing adoption legislation. The Review identifies several key areas where improvements will need to be made, and is seeking views on the
child’s welfare, but the balancing between rights must be clearly carried out to avoid appeal. More major changes in the law will possibly arise with transsexuals, and their claim to be able to marry in their new sex, rather
recommendations made. These recommendations include:
than being classed by the gender/sex with which they were born. The Convention provides individuals with a right to marry under Art 12, this right being subject to the national laws governing its exercise. The position under domestic law being that marriage is the union of a man and a woman and that where parties to a marriage are not of opposite sex, the marriage is void (s 11(c) of the Matrimonial Causes Act 1973). Transsexuals who have completed sexual reassignment surgery have, to date, been prohibited from marrying as their new sex since the courts have consistently interpreted the question of sex as being decided at the time of birth and being incapable of change. In the case of Rees v UK [1987] 2 FLR 111, the European Court of Human Rights stated: ‘In the Court’s opinion, the right to marry guaranteed by Art 12 refers to the traditional marriage between persons of opposite biological sex.’ In addition, the Court found that the refusal of the UK Government to change the sex declared on the birth certificate was not contrary to the rights in Art 8 to a private life. Since this case, the European Court has revisited this issue of change of birth certificates on several occasions. In finding in favour of the UK in Sheffield and Horsham v UK (Case No 31-32/1997/815816/1018-1019, available via the European Court of Human Rights web pages: www.echr.coe.int), the Court upheld the UK’s right not to change birth certificates, but only by a very narrow majority. The Court also highlighted the fact that it is not bound by precedent and would feel free to do so in the future. As the UK was one of four countries that had not decided to change birth records, compared to 33 countries that had the Court felt that: ‘Even if it finds no breach of Art 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States.’ Whether as a reaction to the European Court’s position or not, the government are currently reviewing this issue. In April 1999, an InterDepartmental Working Group was established, with the remit being: ‘To consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue.’ (Commons Written Answer, April 1999 – see Home Office web pages via www.open.gov.uk.) Publication of this review is due imminently, and it will be interesting to see how the ‘problems’ will be dealt with. If the proposals are supportive of enabling transsexuals who have completed reassignment surgery to reregister their birth showing the new sex, then it will be hard to prevent them marrying in their new sex. Societal approval may be mixed (see, for
example, the report ‘Transsexual weddings are condemned’ (2000) The Telegraph, 14 May; and ‘Sex swop couples may be allowed to marry’ (2000) The Telegraph, 22 July), but given that the present interpretation of the domestic law permits a male to female transsexual to marry a woman, since the transsexual is deemed to remain male, there already exists a situation that many groups in society would disapprove of.
Adoption The issue of adoption has again been raised with the publication of the Prime Minister’s Review of Adoption (available via www.cabinet-
•
attracting, recruiting and supporting many more adopters and
•
achieving improvements to the quality and consistency of care
•
making the court system work better in supporting care planning
•
changing the law to make it clear and more consistent, and to
their families; planning and Local Authority performance on adoption; for looked after children; support action in the other three areas. The paper makes it clear that adoption is not seen as a first choice outcome for the majority of children that are brought into the care system, and seeks to change both the attitude of social workers, and the courts when dealing with such children. It is a surprise that the report includes all looked after children within its remit. Under the Children Act 1989, a ‘looked after’ child will include those that are cared for on a voluntary basis by the local authority where for some valid reason the parent, or carer, cannot provide adequate care for the child. As there is no court order keeping the child with the local authority, the parent can remove the child at any time. It would seem inconsistent with a system based on partnership with the parent to expect a local authority to consider removing that parents rights by planning adoption for the child. Be that as it may, the recommendations for changes to the legislation are not dramatic. They include realigning the adoption legislation with the Children Act 1989 to ensure consistency in terms of the welfare of the child, and to clarify the issues of permanency. This latter recommendation is presumably to remove the emphasis on rehabilitation when a child is removed from a family by virtue of the care process. Legislation to promote a national and regional framework for recruiting and supporting adoptive placements is also suggested. This would hope to remove regional variations in who is considered suitable to adopt, and remove the criteria used by some local authorities which are subject to criticism, that is,. that no one over 35 can adopt, that adoptive parents cannot be smokers, etc. Finally, the report recommends that legislation be introduced to provide for Placement Orders which will replace the current system of freeing a child for adoption, whereby the local authority steps into the shoes of the parent before the potential adopter seeks a full adoption order. Responses to the review are required by 6 October 2000, and it is unlikely that a draft Bill on Adoption will be forthcoming before a General Election. It is more conceivable that amendments to this area will form part of the Labour Party election manifesto.
And finally ... It would appear that the internet has now taken over legal advice, or at least is affecting the way that legal advice is provided in the area of divorce law. Several divorce online sites have sprung up, ranging from the indifferent to the useful. The best viewed by the author, in terms of accessibility, and in terms of being an appropriate response to the giving of advice over the internet, is the site provided by solicitors firm Mills and Reeve at www.divorce.co.uk. What is good about this site is it doesn’t claim to be an all singing, all dancing, do it yourself divorce site. It offers information on the divorce process, provides useful information on the emotional side of divorce, and for the student has a Hot Topics list giving updates and opinions from the lawyers at Mills and Reeves. It is written in laymen’s terms, but for students just starting out on the study of family law and divorce, it provides a clear and concise introduction.
office.gov.uk/innovation). This Review does go further than the Local Authority Circular published in 1998 in that it suggests amendments to
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Articles Registration of non-distinctive trade marks ..............................................................141 When can a patent be amended? ............................................................................143 A European Community patent system? ..................................................................145
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Registration of nondistinctive trade marks by Peter J Groves, LLB, MA, PhD, Solicitor, Davis & Co (Solicitors) Ltd When can an otherwise non-distinctive trade mark be said to have acquired enough distinctiveness in use to be registrable? This question was considered recently by the Court of Appeal, in the light of recent decisions from itself and the European Court of Justice, in Bach
Flower Remedies Ltd v Healing Herbs Ltd (21 October 1999). The case concerned certain trade marks used in the business of making
At first instance, the judge decided that the evidence showed
medicinal remedies from plants. The products were developed from the
that the expressions ‘Bach Remedies’, ‘Bach Flowers’ and ‘Bach
teachings of Dr Richard Bach (pronounced ‘batch’ rather than as in
Flower Remedies’ were used generically, to mean the remedies rather
Johann Sebastian) and, after his death in 1936, were made by a company
than the remedies made up or supplied by the Bach Centre. They were
incorporated under the name Bach Flower Remedies Ltd.
therefore registered in breach of s 3(1)(c) of the 1994 Act. The question
The company registered several trade marks under the old 1938
for the Court of Appeal was whether the proposition held true of the
Act, including the name Bach, the good doctor’s signature, and the
mark BACH FLOWER REMEDIES at the time of the trial. The judge
trading style Bach Flower Remedies both in the form of a logo and as
had considered that it did, and the mark was not saved by acquired
words only.
distinctiveness.
When the Trade Marks Act 1994 came into operation, the
The Court of Appeal had the benefit of three judgments which
appellant, which had been established to market a rival range of
had not been available to the first instance judge. In chronological
products, challenged the validity of the registrations. It argued that the
order, they were Windsurfing Chiemsee Produktions v Huber [1999]
registered marks were devoid of distinctive character, descriptive and
ETMR 585, ECJ; Philips Electronics NV v Remington Consumer
generic: in fact, they pleaded all the absolute grounds for refusal of
Products Ltd [1999] ETMR 816, CA; and Lloyd Schuhfbrik Meyer v
registration under s 3(1) of the new Act. At first instance ([1999] RPC 1),
Klijsen Handel BV [1999] ETMR 690, ECJ.
the judge, Neuberger J, held that they were all registered in breach of s 3(1)(c) – that they were descriptive because the name Bach was associated with a particular manner of treatment rather than identifying the source of the goods – and acceded to the application for revocation save that he allowed the signature marks and the device marks to remain registered with a disclaimer of any exclusive rights in the name Bach.
Invalidity
Demonstrating distinctiveness The first of these concerned a geographical trade mark, the name of a lake in Bavaria. Asked what was required for such a mark to acquire a distinctive character, the court observed that acquired distinctiveness: ... must serve to identify the product ... as originating from a particular undertaking and thus to distinguish that product from goods of other undertakings ...
The appellants went to the Court of Appeal arguing that the BACH and
The court indicated that market share, intensity and extent
BACH FLOWER REMEDIES marks should not have been revoked
(geographical and temporal) of use, investment in promotion, the
because they had acquired distinctiveness through use. The judge had
proportion of the relevant class of persons who identify goods bearing
not needed to consider whether there were grounds for invalidity under s
the mark as the goods of a particular supplier, and statements from
3(1)(a) too, on the grounds that the marks were incapable of
trade and professional bodies would all go to acquired distinctiveness.
distinguishing one person’s goods from those of others: on appeal, both
Reference only to ‘general abstract data such as predetermined
parties argued that he should have done. From the respondent’s point of
percentages’ would not suffice. If the court found that the relevant
view, this could usefully overcome any claim to validity based on
class of persons, or a significant proportion of them, identified goods as
acquired distinctiveness, as use of a mark, however extensive, cannot
coming from a particular undertaking because of the trade mark, then
overcome an inherent incapacity to distinguish.
it had acquired distinctiveness.
The evidence (reviewed at great length in the first instance
In the Lloyd case, the European Court applied the principles it
judgment) showed that the appellant and its predecessors including Dr
had set out in the Chiemsee case and reiterated its rejection of a
Bach himself had used the expression ‘Bach Flower Remedies’
statistical approach. As for the public’s appreciation of the mark, it
generically. It appeared in publications and was referred to in lectures.
observed that:
Retailers and herbal practitioners used the description, and the Bach
... the global appreciation of the likelihood of confusion
Centre (as Dr Bach’s house was renamed after his death) representing the
must, as regards the visual, aural or conceptual similarity
‘official’ side of the industry made no attempt to prevent competent
of the mark in question, be based on the overall
practitioners describing their services in this way.
impression created by them, bearing in mind, in
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particular, their distinctive and dominant components.
mark was invalidly registered as at the time the name Bach had lost any
The wording of Art 5(1)(b) of the Directive – ‘there exists a
capacity to distinguish that it once had.
likelihood of confusion on the part of the public’ – shows
Although there was no longer any need to do so, the court went
that the perception of marks in the mind of the average
on to consider the matter of acquired distinctiveness. Morritt LJ stated
consumer of the category of goods or services in question
that it would have to be shown that the expression BACH FLOWER
plays a decisive role in the global appreciation of the
REMEDIES had to the average consumer of such goods acquired a
likelihood of confusion. The average consumer normally
distinctive character in that it distinguished such goods made by the
perceives a mark as a whole and does not proceed to
appellant from similar goods made by others. During the period in
analyse its various details ...
question, use of the mark had grown considerably; but, as Morritt LJ
The Philips case concerned the shape of the plaintiffs’ three-headed
said, neither use nor increased use of a mark proves that the mark is
electric shaver. Aldous LJ held that where the validity of a mark is
distinctive. The use would have to be in a distinctive sense to make any
challenged under s 3(1)(a) so that the proviso about acquired
difference. The evidence did not show that the average consumer
distinctiveness did not apply, it was possible that a mark may in fact
would have considered the name distinctive. In an extremely
denote one supplier’s goods exclusively while lacking any feature that
inconclusive NOP omnibus survey, only 30 out of 9,600 respondents
would distinguish the supplier’s goods from those of others who might
came up with anything useful. Shop assistants were not average
come into the market. The more descriptive the mark is of the goods the
consumers, so their impressions of the meaning of the name were of no
less likely it would be to distinguish that supplier’s goods from those of
help either: and the views of other retailers and members of the public
others.
were not considered to be attributable to the average consumer, either. In the Bach case, the appellant argued that the inclusion of the
On the other hand, the extent of generic or descriptive usage of the
name ‘Bach’ in the marks meant that they did have a capacity to
mark, in publications and even in the way the expression Bach Flower
distinguish. It was a sufficiently capricious addition to the descriptive
Remedies was used by the appellant, weighed heavily against the
matter in the mark to get the phrase BACH FLOWER REMEDIES over
appeal.
the ‘capable of distinguishing’ threshold. The respondents countered that this depended on the meaning of the words, and, in this context, it was relevant to look at the way the word ‘Bach’ had been used before the mark was registered – that is, as a generic expression. The court considered that this was the right approach, and one that was compatible with Aldous LJ’s judgment in Philips. Evidence of the way the mark was perceived by the relevant public was therefore crucial, but the court was not to be persuaded merely by sheer volume: ‘... the issue cannot be resolved by counting heads.’ There were members of the public who regarded the Bach name as distinctive, and shop assistants when asked for the goods by name offered the appellant’s products (though, in view of the respondent’s small market penetration, this was hardly surprising). Applying the average consumer test, the court took the view that this hypothetical person would be aware that the mark was used in a generic sense and that therefore the
Conclusion The problem facing trade mark owners who need to prove that their mark has become distinctive through use, or in other circumstances that there is a likelihood of confusion, is to know what sort of evidence to bring before the court. Omnibus surveys are easy and cheap, but will rarely impress the judges: they might throw up a number of useful witnesses, but, in the present case, even this was not achieved. Nor is repetitive evidence from individual consumers, each put forward as the embodiment of the average consumer, of much assistance to the court. The judges have to inform themselves of the matters of which a reasonably well informed, observant and circumspect consumer of the products would know, and then ask what meaning that person would place on the mark. The matters in the mind of that person must be demonstrated by evidence, but sheer weight of numbers of witnesses will not impress the judges.
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When can a patent be amended? by Peter J Groves, LLB, MA, PhD, Solicitor, Davis & Co (Solicitors) Ltd Despite the best efforts of the UK and European Patent Offices, there will always be cases where patents are granted with invalid claims. The person drafting the specification may not have had full knowledge of every possibly relevant piece of prior art. To cover this situation, the legislation needs some sort of mechanism for
Melea v Cinpres (9 September 1999); and Hadley Metal Industries plc v
amendments to be made after grant (pre-grant amendments being
Metal Sections Ltd and Others ((1999) The Times, 28 October). Most
altogether an easier problem). Unfortunately, the way the European and
recently, the Patents Court has returned to the matter of amendments in
UK patent systems approach this matter are some way from being
Sara Lee Household and Body Care UK Ltd v Johnson Wax Ltd (8
consistent.
December 1999). In the Kimberly Clark case, the Court of Appeal considered that
The Patents Act 1977 allows granted patents to be amended in two circumstances. If no proceedings in which the validity of the patent
the discretion continued, saying:
may be put in issue are pending, the comptroller may (not shall) allow
... the EPC does not contain any provision relating to
the specification to be amended, subject to conditions if he thinks fit (s
amendment of patents after the opposition procedure ...
27). Section 75 allows amendments to be made in the course of
has been completed ... There is nothing in the EPC
infringement or revocation proceedings. A patentee might save an
requiring any State to allow post-grant amendment nor, if
otherwise invalid patent by changing one or more of the claims during an
they do, to prevent or lay down rules as to the way in which discretion should be exercised.
infringement action. The court (or if the proceedings are before her the comptroller) has discretion to allow such amendments to be made.
Section 75 gives the court a discretion to allow amendments, and is
The court will exercise it with care, of course, and the comptroller
therefore inconsistent with the EPC. Of course, the Patents Act contains
is, in practice, more cautious still: but in recent months the continued
a provision (s 130(7)) which declares that certain provisions of the Act
existence of a discretion to allow amendments to be made has been
‘are framed so as to have, as nearly as practicable, the same effect in the
called into question. The problem is that it lies uneasily alongside the
United Kingdom as the corresponding provisions of the European Patent
provisions of the European Patent Convention, which provides a simple
Convention’: but this does not include ss 27 and 75, and s 75 is based
system with no question of discretion, in Art 138(2):
on the equivalent provision of the Patents Act 1949.
If the grounds of revocation only affect the European Patent
In Smith Kline and French Laboratories Ltd v Evans Medical Ltd
in part, revocation shall be pronounced in the form of a
[1989] FSR 561, Aldous J as he then was laid down guidelines for the
corresponding limitation of the said patent. If the national
court in the exercise of its discretion. Delay was not in the public
law so allows, limitation may be effected in the form of an
interest and it was open to parties to abuse a patent which they knew
amendment to the claims to description or the drawings.
ought to have been amended. The judgment was upheld by the Court of
Partially valid patents will therefore be enforceable in each Member
Appeal in Hsuing’s Patent [1992] RPC 497 and Bonzel v Intervention
State, once appropriate limitations have been placed on them by the
(No 2) [1991] RPC 231, the first being a 1949 Act patent and the second
courts, which are given no discretion: cure is a right given to the
a 1977 Act one. But, in the Richardson-Vicks case, Jacob J pointed to
patentee. Putting the limitation into effect by means of an amendment is
the illogicality of a situation where the EPO might be considering an
merely one way to comply with the requirement of the Convention.
amendment application in opposition proceedings, and the UK courts
In Kimberly Clark Ltd v Proctor and Gamble Ltd (24 November 1999), the Court of Appeal overturned a judgment of Laddie J in the
might be considering the same amendment but applying different criteria.
Patents Court (6 July 1999) that the old law requiring amendments to
Pumphrey J, newly appointed to the bench, took the matter up
involve an exercise of discretion should not apply to applications to
in the Palmaz and Melea cases, and ruled that, in the case of European
amend under the 1977 Act. Amendment is a matter of right, not
Patents UK, the discretion to refuse amendment should not be used: it
discretion, under the European Patent Convention, and the English courts
would be bizarre if amendments effective in all the other EPC
should not maintain a unique power to prevent inventors from securing
Contracting States were effective but the conduct of the patentee was
patent protection for their inventions by refusing permission to amend.
seen to be blameworthy in some way so that the English courts would
The judgment of Pumphrey J in Texas Instruments v Hyundai Electronics
refuse to allow the patent to be amended. In Hadley v Metsec,
(30 July 1999) had reached the same conclusion, and a number of other
Neuberger J went even further and decided that the same applied to UK
judgments have supported the same view recently: Richardson-Vicks
patents.
Patent [1995] RPC 568; Palmaz’s European Patent [1999] RPC 427;
Then the Court of Appeal entered the fray, with its Kimberly
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Clark judgment. Aldous LJ as he now is decided that the court’s
claim 1 to exclude the prior art but by inserting two new dependent
discretion should be restored, arguing that:
claims narrower than claim 1 but wider than any of the dependent
... the signatories to the EPC did not contemplate that the
claims as granted. Far from achieving their stated aim of distinguishing
ambit of national patents, granted using the European
their invention more clearly from the prior art, as they claimed they
route, would necessarily be the same during the life of the
wanted to do, this would establish a fall back position to enable them
patents ...
to sustain an infringement action even if the first claim were held
Section 77 of the 1977 Act clearly states that European Patents (UK)
invalid (which in fact did not happen).
will, after grant, be treated as UK Patents. The same rights and remedies
The deputy judge considered that this would not be an
will be conferred on the owner of a European Patent (UK) as on the
appropriate exercise of the discretion under s 75. He cited Raleigh
owner of a straightforward UK patent. Once the EPC’s opposition
Cycle Co Ltd v H Miller & Co Ltd (1950) 67 RPC 226, 230 in support of
procedure is exhausted, infringement, validity and amendment are
the proposition that a patentee facing an attack on his patent is put to
matters solely for the national courts.
an election: stand by the claim as it is, or amend. The Technical Board
He rejected an argument that allowing the courts a discretion in
of Appeal of the EPO was also not disposed to allow new dependent
these matters introduced an unwarranted moral dimension. The court,
claims to be added by amendment: British Telecommunications
he said, has a duty to protect the public from abuses of monopolies, so
(decision T0829/93). Article 57a of the EPC provides that amendments
there was a considerable moral dimension involved in the court’s work
can only be admitted if they go to the grounds of opposition, and ‘the
already. There would be practical difficulties with this approach, but to
filing of new dependent claims just for improving such fall back
restrict the discretion under s 75 for reasons of procedural convenience
position is in no way necessary or appropriate’.
would be to allow the tail to wag the dog.
To maintain an invalid claim would be to create an obstacle to
The newly confirmed discretion was exercised to good effect by
trade, and the public interest (as Aldous LJ put it) would not be served if
David Young QC sitting as a deputy judge in the Sara Lee case. There,
this was permitted. The discretion to allow amendments, which seems
the patent related to a ‘rimblock’ toilet cleanser and freshener, and the
safe for the time being, must be exercised to avoid this consequence.
defendants argued that on the basis of an earlier German patent they
Amendments must be directed to meeting grounds for invalidity, and
had found claim 1 was either anticipated or obvious, and whichever,
introducing new dependent claims does not do this, it merely provides
invalid. Claim 1 was the widest and the only independent claim, and if
further claims which may in themselves be valid.
the claimants had lost it they would have lost their claim: claim 2 does not appear to have been wide enough to do the job. Sara Lee sought to amend the patent at trial not by changing
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A European Community patent system? by Peter J Groves, LLB, MA, PhD, Solicitor, Davis & Co (Solicitors) Ltd The Community Patent Convention has been one of the longest running non-events in the history of European integration. Intended by its framers to offer inventors a route to a single piece of
the important development has been the publication, on 5 July 2000,
intellectual property valid throughout all the Member States, it suffered
of the Commission’s proposed regulation on the Community Patent.
from its origins outside the European Community treaties, which at the
The intention, expressed at the Summits in Lisbon and Feira during the
time were thought to exclude any activity in the intellectual property
Portuguese presidency, is to have the legislation in place by the end of
field. Although the Community Patent Convention (CPC) has languished
next year.
in a legislative backwater for many years, the 1973 European Patent Convention (EPC), nothing to do in a formal sense with the European Community, took the basic structure that had been intended to lead to the grant of unitary Community patents and used it to generate bundles of national patents. By requiring only one application, with only one examination, the EPC offered substantial economies to patentees who needed protection in several European countries. It has in fact been so successful that some have doubted whether there was any longer a need for the Community patent at all. The EPC now brings together all the Member States of the European Community, plus Switzerland, Liechtenstein, Monaco and Cyprus, although some EC countries have only adhered to it relatively recently. The CPC, though all the Member States have signed it, has not yet been fully ratified. Some countries had to get over major hurdles, such as weighted parliamentary majorities and even referenda, before adhering to it, largely because it sought to create a supra-national Community Patent Court, and nation states are generally reluctant to hand judicial power to an outside body. The Commission’s concern to promote innovation in the Community has finally meant that the idea of a Community wide patent is coming into its own.
Patents in the European Community
Community patents Harmonisation of patent law within the European Community as been brought about to a considerable extent already by the EPC. There is no need for the grant of Community patents to be preceded by the creation of a raft of substantial rules: they are already present in the EPC and in the national laws of the EPC members. The UK’s Patents Act 1977 is expressly intended to reflect the substantive law of the EPC, so that for example whether an applicant wants to file a European patent application or a UK one, a patent will only issue at the end of the process if she has identified a novel, non-obvious invention that is capable of industrial application and not on the list of excluded matters which is identical in each piece of legislation. The European Patent Office operates according to a different procedure from that of the UK Patent Office, and will sometimes grant or refuse patents that would as a matter of practice be dealt with differently in the UK office (see, for example, [1999] SLRYB 139 on patentability of computer programs). Although the EPC has proved successful, its value is limited by the need to take proceedings in as many as 15 different countries to enforce it throughout the EC, with no guarantee that the same result will be obtained in each. Procedural rules also differ, and translation
But the CPC/EPC issue is no longer all there is to patents in the European
costs make it much more expensive to get protection in the EC than in
Community. After making trademark law and large parts of copyright law
the US or Japan.
look relatively uniform throughout the single market, with harmonisation
The Commission’s new proposal would enable the European
of design laws imminent, and with Community trademarks a reality and
Patent Office to grant Community patents as well as Europeans, with
Community designs not far off, patents were an area ripe for attention.
the option of obtaining a national patent still available to inventors.
Based on the Commission’s action plan for innovation in Europe (COM(96) 589 final, 20 November 1996), a green paper on the
The Commission reckons that its new system would make patenting both affordable and legally certain.
Community patent and the patent system in Europe was published in
At present, it costs three to five times as much to obtain a
June 1997 (COM(97) 314 final). Consultations following the green paper
patent in Europe compared with the US or Japan. Translation costs
indicated a need for, first, a unitary system of patent protection and,
account for a large part of this: the description of the invention would
secondly, various additional harmonisation measures. The Commission
only have to be in one of the three official languages (English, French
also speaks of modifying the system to ‘afford greater protection to
and German) in which the European Patent Office operates, while the
research results and thereby encourage such research and its commercial
claims would have to be translated into the other two official
exploitation’.
languages only. (Even so, the Commission observes that English is the
In addition to the Community patent, the Commission is also
universal language of patents, adding that even at the Institut National
considering proposals for harmonising legislation on software patents and
de la Propriété Industrielle in France only 2% of patent documents are
the role of patent agents. Other proposals are likely too. For our purposes,
consulted in translation.) Legal certainly will be obtained by setting up a new centralised
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tribunal within the Court of Justice of the European Communities to
substantive law is already mostly in the European Patent Convention, so
deal with disputes relating to infringements and validity of Community
that does not require repeating, and the administration of the new
patents. The EC Treaty will have to be amended to accommodate this,
patents (including renewals) will be in the hands of the granting body,
but such a change has already been called for to strengthen and reform
the European Patent Office.
the Community judicial system by the Commission in its position on
The result is a simple-looking piece of legislation that will have
the Intergovernmental Conference in March 2000. Disputes about
a profound effect on the way patents are granted within the European
licensing and ownership of Community patents will remain matters for
Community. The novelty of the Community system lies not in its
national courts.
substantive rules (although there are other proposals in the pipeline that will change the substance of patent law) but in the way the patents will
The legislation The way that the two systems will be brought together will be for the European Community to become a member of the EPC in its own right. The draft Regulation sets out the rights that it will confer on the owner of a Community patent, rules for dealing in Community patents, and provisions about legal proceedings concerning Community patents: the
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be granted and the way in which they will be enforced. Given the expense of obtaining patent protection, which is traditionally national in scope (so the cost of getting wide protection is many times that of a single application) anything that gives inventors, who are often individuals, access to the essential legal protection at a lower cost is going to find a lot of takers.
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Articles The new EC directive on electronic signatures and its impact on international commerce ......................................................................................148 The Bolero Project – the International Chamber of Commerce’s electronic bill of lading project ..........................................................................151
Case notes Orinoco Navigation (Cyprus) Ltd v Ecotrade SpA (The Ikariada) ............................153 Motis Exports Ltd v Dampskibsselskabet AF 1912 and Aktieselskabat Dampskibsselskabet Sevndborg ..........................................................................154 Banco Santander SA v Bayfern Ltd and Others........................................................155 Standard Chartered Bank v Pakistan National Shipping Corp (No 2) ......................156 Group Josi Reinsurance Co SA v Universal General Insurance Co ........................158
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The new EC directive on electronic signatures and its impact on international commerce by Jason CT Chuah, Senior Lecturer in Law, Kingston University It is undeniable that the signature is an important feature in international trade documentation. As international trade transactions move gradually away from paper based communications, the use of electronic signatures will inevitably take a more significant role. Indeed, unless electronic signatures are actively promoted, there is very
confirm the identity of a person signing electronically. The Directive is
little room for effective growth in e-commerce. In this conjunction, this
chiefly concerned with the ‘regulation’ of these entities as can be seen
article will consider the efforts of the EU in bringing about a framework
from its choice of legal base. The EU’s competence in the making of
for the recognition of electronic signatures and how security and
this Directive is founded on Arts 47(2), 55 and 95 EC. These Articles
efficiency could be best maintained.
relate to the right of establishment and services, and the need to approximate the laws between Member States respectively.
EC Directive on a Community Framework for Electronic Signatures
The governance of e-commerce, as far as the EU is concerned, is largely to be shared between government and the private sector. This integrated approach of self-regulation and state regulation is reflected in
It is anticipated that the EC Directive on a Community Framework for
the Directive. Paragraph 13 of the Preamble to the Directive, for
Electronic Signatures will be formally adopted very soon. The informal
instance, states that, while Member States may decide how they wish to
final version of the Directive, which was published in November 1999,
supervise compliance of the Directive by operators, there should be
is the culmination of several years’ work of the EC Council and
room for private sector based supervision systems. The Directive clearly
Commission. Formal initiation of the effort might be traced back to
provides that certificate service providers are not obliged to apply to be
April 1997 when a Communication on an European Initiative in
supervised under any applicable accreditation scheme, thereby
Electronic Commerce was presented to the European Parliament, the
ensuring a large degree of autonomy.
Council, the Economic and Social Committee and the Committee of the Regions with a view to garner support from these agencies for the
Electronic signatures
drafting of laws on electronic signatures and other measures. As far as
The Directive specifically refers to electronic signatures as data in
the Commission was concerned, electronic communication and
electronic form which are attached to or logically associated with other
commerce could only succeed with the adoption of electronic
electronic data and which serve as a method of authentication.
signatures and related services allowing data authentication.
Member States are required to provide for the sanctity of electronic
The main hurdle in the way of progress, so to say, is the
signatures. Article 5(1) states that advanced electronic signatures which
divergent rules in the Member States on the legal recognition of
are based on qualified certificate and which are created by a secure-
electronic signatures and the accreditation of organisations or firms
signature-creation device are to afforded the same status as hand
providing ‘certification’ services. Certification refers to the attestation
written signatures. It should be said that the electronic signature is only
issued by these organisations or firms confirming the sanctity and
to have the same effect in relation to electronic data, as a hand written
security of the data transmitted and the identity of the person sending it.
signature has in relation to paper based data. There is nothing expressly
The Directive strains to remove these difficulties.
stated as to the effect of an electronic signature in relation to paper
This measure of EC law represents a slice of a larger plan – that
based data.
to integrate electronic commerce into mainstream Internal Market rules.
Qualified certificates must contain, according to Annex I of the
The Community and its Member States are agreed that electronic
Directive:
signatures are absolutely vital to ensure confidence, security and
•
an indication that the certificate is issued as a qualified
•
the identification of the certification-service-provider and the
efficiency in electronic communication and commerce. Central to this equation is the role of providers of certification services, that is to say, persons or bodies issuing certificates which would then be used to
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certificate; State in which it is established;
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It is anticipated that the new framework would promote the
identified as such;
interoperability of electronic-signature products between Member
provision for a specific attribute of the signatory to be included
States in an open network. In order to ensure that certification-service-
if relevant, depending on the purpose for which the certificate is
providers are able to operate on a level playing field within the EU,
intended;
rules on liability are to a large extent approximated or harmonised.
signature-verification data which correspond to signature-
Although each certification-service-provider shall be subject to national
creation data under the control of the signatory;
rules regarding liability, Art 6 provides that Member States shall ensure
an indication of the beginning and end of the period of validity
that a certification-service-provider who issues a certificate as a
of the certificate;
qualified certificate or guarantees such a certificate to the public shall
•
the identity code of the certificate;
be liable for damage caused to any person who reasonably relies on
•
the advanced electronic signature of the certification-service-
that certificate as regards its accuracy and reliability, unless the
provider issuing it;
certification-service-provider proves that he has not acted negligently.
•
• •
• •
limitations of the scope of use of the certificate, if applicable;
The Member State is also obliged to introduce measures
and
(whether legislative or administrative) to ensure that a certification-
limits on the value of transactions for which the certificate can
service-provider who has issued a certificate as a qualified certificate to
be used, if applicable.
the public is liable for damage caused to any person who reasonably
Advanced electronic signatures are more than a mere authentication
relies on the certificate for failure to register revocation of the certificate
tool; it is an electronic signature which meets the following
unless the certification-service-provider proves that he has not acted
requirements:
negligently. Article 6(3) and (4), however, in an attempt to promote the
•
it is uniquely linked to the signatory (that is, the person who
growth in this sector, does allow certification-service-providers to
holds the signature-creation device);
stipulate limitations on the use and/or transactional value of the
•
it is capable of identifying the signatory;
certificate, provided that the limitations are recognisable to third parties.
•
it is created using means that the signatory can maintain under
Where damage arises from use of a certificate which exceeds these
his sole control; and
limitations, the provider shall not be liable. It is uncertain what the
it is linked to the data to which it relates in such a manner that
proviso that the limitations are recognisable by third parties
any subsequent change of the data is detectable.
encompasses.
•
The fact that the electronic signature is backed by a certificate makes
The supervision framework is set out in Art 3. Each Member
that signature more reliable and trustworthy; the certificate does not
State is required to introduce an appropriate system for the supervision
confer on the signature any legal standing. Article 5(2) of the Directive
of certification-service-providers which are established on its territory
requires Member States to ensure that an electronic signature is not
and issue qualified certificates to the public. There is, however, no
denied legal effectiveness and admissibility as evidence in legal
requirement that prior authorisation be sought before entities can
proceedings solely on the grounds that it is:
provide certification services. In this context, prior authorisation means
•
in electronic form; or
not only any permission whereby the certification-service-provider
•
not based upon a qualified certificate; or
concerned has to obtain a decision by national authorities before being
•
not based upon a qualified certificate issued by an accredited
allowed to provide its certification services, but also any other measures
certification-service-provider; or
having the same effect.
•
not created by a secure signature-creation device.
As far as the Commission and Council are concerned, voluntary
This makes clear that the legal recognition of electronic signatures is not
accreditation schemes on the other hand are to be actively encouraged
linked to authorisation of the certification-service-provider or its
to ensure a high quality of service. In this regard, Member States are
liability. The effectiveness of electronic signatures is to be tested solely
exhorted by the Directive (Art 3(2)) to introduce or maintain voluntary
against objective criteria as set out by national law. Hence, although a
accreditation schemes provided that these schemes meet the general
certificate is a needful attestation which links the signature verification
requirements of objectivity, transparency, proportionality and non-
data to a person and confirms the identity of that person, it does not
discrimination.
affect the validity of the signature. The Directive provides only for the legal recognition of electronic signatures as being no different from hand written signatures;
Data protection
the ultimate implications of the signature in each Member State as
Certification-service-providers are not to be exempt from the general
regards substantive law is not approximated or harmonised. All that the
law on data protection. Under Art 8, Member States are instructed to
Directive does is to ensure that each Member State treats electronic
enforce and supervise the enforcement of data protection rules (as
signatures as it would treat hand written signatures.
contained in Directive 95/46/EC; OJ L281, 23 November 1995). In particular, certification-service-providers shall be required to collect
Certification-service-providers
personal data only directly from the data subject or after obtaining explicit consent from the latter, and only insofar as it is necessary for the
The Directive is specifically directed at certification-service-providers; it seeks to bolster their right to establish themselves anywhere within the Single Market. ‘Certification-service-provider’ is defined by Art 2(11) as
purposes of issuing and maintaining the certificate. They are not allowed to process that data without express consent of the data subject. Processing data, incidentally, means:
an entity or a legal or natural person who issues certificates or provides other services related to electronic signatures.
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... obtaining, recording or holding the information or data
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or carrying out any operation or set of operations on the
Directive and has been accredited under a voluntary
information or data, including: –
organisation, adaptation or alteration of the
accreditation scheme established in a Member State; or •
a certification-service-provider properly established within the
•
there exists a bilateral or multilateral agreement between the
information or data; –
retrieval, consultation or use of the information or
–
disclosure of the information or data by
data;
–
the certification-service-provider fulfils the requirements in the
Community guarantees the certificate; or Community and third countries or international organisations calling for such recognition.
transmission, dissemination or otherwise making
Again, it should be emphasised that the legal standing of an electronic
available; or
signature is guaranteed by Art 5 and it is not affected by the fact that the
alignment, combination, blocking, erasure or
certification-service provider is not recognised under Art 7.
destruction of the information or data.
The significance of this definition as set out in EC Directive 95/46 (and implemented as English law through the Data Protection Act 1998) is that nothing of any significance falls outside the scope of the law.
Conclusion As far as the EU is concerned, the logic is this – as greater standardisation is applied to electronic signatures and certification on
International aspects
the international scene, international e-commerce is bound to take on an even greater significance and at the same time, as international e-
Article 7 provides that Member States shall ensure that certificates
commerce becomes more important, the e-signatures regime will
issued by a certification-service-provider established in a third country
gradually become even more indispensable.
are properly recognised and not discriminated against if one of the following requirements is met:
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The Bolero Project – the International Chamber of Commerce’s electronic bill of lading project by Jason CT Chuah, Senior Lecturer in Law, Kingston University Paperless trade is anticipated to emerge as an alternative to international traders. It is by no means intended that paperless trade will take over completely the use of paper documents in export and import considering the differing stages of development in e-trade between nations. Not all countries and traders will be able to ‘come on line’ simultaneously. Where paperless trade is to be adopted, there is a distinct need for legal
The employment of Bolero does not however do away with
regulation and facilitation. Traders need to have settled principles to
the need for trusted infrastructures between correspondent and issuing
operate under and a properly supported legal infra-structure to ensure that
banks. Bolero, as stated earlier, is only intended to assume the place of
their rights are enforceable. It is this need for certainty which led to
paper documents; it is not the panacea to the travails of international
international and national efforts to provide facilitation for paperless trade.
trading.
The International Chamber of Commerce’s Bolero Project is one such endeavour. The objective of Bolero is to replace the paper bill of lading and waybill with the electronic Bolero bill which could take either a transferable or non-transferable form. Bolero was the initiative of the Electronic Commerce Project (ECP) of the International Chamber of Commerce (ICC) and is sponsored by Society for Worldwide Interbank Financial Telecommunications (SWIFT) and the Through Transport Club (TTC). The technical infrastructure of Bolero went on line on 1 December
Objectives The main objectives of the Bolero service are to: •
provide a central registry for the electronic storage and
•
provide a central registry for all aspects of trade from pre-
•
provide a central registry for the validation of documents
associated maintenance of shipping and trade documentation; booking to inward goods clearance; which relate to the progress and movement of the
1998 and the first ‘live’ trade was carried out in February 2000 through the agency of Bolero.net, the operating system. It would be useful to describe how the February 2000 ‘live’ trade took place in understanding how a paperless transaction could take place. The importer (Federated Merchandising Group Inc) bought a consignment of women’s knitwear under a letter of credit from Peninsula Knitters (the sellers) in Hong Kong. Citibank acted as both the issuing and advising bank. The shipment was from Hong Kong to the US. The required electronic documents included the invoice, the bill of lading (issued by the carrier) and the forwarder’s cargo receipt. The full set of documents was presented to Citibank electronically by Peninsula for negotiation of the letter of credit. Citibank made payment to Peninsula on the basis of the documents as submitted electronically and a payment pre-advice from Federated authorising that payment. It goes without saying that the transaction required a great deal of co-operation between the parties (the seller, buyer, bank, freight forwarder and carrier), as such, gave each participant the opportunity to appreciate the needs of other participant companies. This particular transaction is intentionally quite straightforward, being the first ‘live’ trade.
consignment; •
ensure that security and authentication requirements are met
•
provide a global infra-structure for international traders and
•
provide an open system with a simple interface using
so as to engender trust between participants; shippers; internationally recognised standards. It is Bolero’s plan to ensure that these services will be offered at a realistic price so as to encourage a wider base of users. It has also been argued that electronic documents could be presented, dealt with, amended and surrendered much faster than paper documents. The system makes it possible to distinguish between highly critical and less time sensitive documents. Through a ‘time out’ function, the sender can receive warnings from Bolero when the document is not received by its counterparty. As with emails, the message could be marked ‘urgent’ to enable traders to prioritise properly their transactions.
Functionality The essence of the Bolero system lies in its ‘Core Messaging Platform’. This application is vital for the secure transmission of trade documents
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of digital signatures and encryption. The proponents of Bolero argue
The Title Registry also maintains a full log of all Bolero bill of
that the electronic system is far more secure than paper trade because
lading transactions and these logs could therefore be checked against
while it is possible for a confidential paper document to be copied,
the digitally signed messages maintained by the Core Message Platform
forged and presented to third parties without the knowledge of the
to prove transaction integrity.
originator, Bolero’s security encryption means that a document could only be viewed by the intended recipient and its use of digital signatures ensures that electronically signed cannot be altered generally.
Acceptability of Bolero documents under the UCP 500
The Core Messaging Platform also overcomes the problem of the absence of acknowledgment of receipt which is usually suffered by email. For example, it is widely known that it is usually difficult to tell whether an email has been received or read. The Bolero system addresses this problem by the adoption of a unique messaging protocol. When a message is transmitted, the Bolero systems provider (for example, Bolero.net) acknowledges receipt immediately and then forwards the message to the receiver. As soon as it is received (downloaded) by the receiver, an automatic acknowledgment of receipt is transmitted to Bolero. Bolero will then transmit that acknowledgment to the sender. When trade documents are transmitted, it is crucial that the all interested parties are convinced that the documents are original and have not been tampered with. With Bolero, the system matches the original content against the forwarded content. Where an inconsistency is found, the document will be rejected. The Core Messaging Platform also maintains a log of all transmissions made. Another major imperative of the Bolero project is that the
Generally, the argument is that electronic messaging standards and systems are better placed to expedite the documents checking process when the documents are presented for payment, at least as far as the mechanical process is concerned. However, some changes will need to be made to the existing technical and legal provisions. It is quite clear that, while the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No 500 (UCP 500) could apply to electronic trade, e-trade is not expressly anticipated in the rules and some clarification of good practice will be necessary. For instance, while Art 20 of UCP 500 recognises that documents may be generated through computerised systems and thereby may be signed electronically, the general tenor of the UCP is very much relates to paper documentation. As far as Bolero is concerned, the system is intended to operate within the context of existing rules on documentary trade (for example, UCP 500, etc).
Prospects
electronic trade document should be a fully functional equivalent to the
There are other concurrent efforts to develop paperless trade, for
paper document. As far as the bill of lading is concerned, this means
example, TradeCard (a global system for traders to do away with letters
that the electronic bill of lading should not only operate as a waybill
of credit and is aimed at small traders and trade finance deals below
but should be fully operational as a document of title and be capable of
US$100,000, which was established by the World Trade Centre
being created, transferred, pledged, amended and surrendered. In order
Association in partnership with General Electric Information Services),
that this (especially the capability of pledging) could be achieved, the
electronic cash (for example, on-line encrypted payment systems), etc.
system employs a mechanism called ‘Title Registry’.
A vital factor of success for Bolero is standardisation of systems.
The Title Registry is an application for the recording and
Without an international standard for all trade finance documents (for
transferring the rights and obligations contained in a Bolero bill of
examples, bills of lading, certificates of origin, invoices, etc) such as
lading. It might be recalled that a bill of lading becomes adequate
EDIFACT (a United Nations standard) or ANSI X12 (a US developed
security once it endorsed to the bank or any other person providing the
standard), the transmission of trade finance data will run into all sorts of
necessary finance. With the Title Registry system, this security interest is
problems involving operability.
enhanced through the addition of a pledgee. A pledgee is a party whose rights and obligations over the Bolero bill of lading are exercised
Comment
only when the pledge is enforced. The Title Registry maintains an endorsement chain (which in a paper trade transaction includes every person who is privy to the bill of lading) and this chain records the transfer of rights and obligations between the parties. There is also a time-stamp on each electronic endorsement in the endorsement chain
Students of international trade law should be aware of these new developments. The world of international trade they will practise in is changing rapidly and whilst the traditional subject they are studying will provide a good foundation for new skills and learning, it is myopic to disregard such current developments.
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Case notes by Jason CT Chuah, Senior Lecturer in Law, Kingston University
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In the event that the bill of lading was not contractual, whether as a matter of Greek law, cl 35 of the charterparty was incorporated into the bill of lading contract and whether it exempted Orinoco from liability for damage caused to Titan’s crane.
Held Ecotrade was not in breach of any express and/or implied term in failing to fill in the blank on the face of the bill of lading. They were not bound to indemnify Orinoco against the consequence of requiring the master
Voyage charterparty – bills of lading and incorporation of charterparty
to sign the bill of lading in that form. The bill of lading was contractual. If it was contractual, then Greek law was not relevant. English law should therefore apply.
Orinoco Navigation (Cyprus) Ltd v Ecotrade SpA (The Ikariada) [1999] 2 Lloyd’s Rep 365, QBD (Commercial Court)
In the present case, the master was required by charter merely to sign bills as presented. He was therefore under no obligation to sign the bill in a particular form. The bill of lading as presented was in a form which did not contain extraordinary terms or terms which were
Facts
manifestly inconsistent with the charter. It did not impose more onerous terms than the charter. As a matter of English law, therefore, the effect of
The claimant (Orinoco) chartered their vessel on an amended Gencon
the failure to fill in the blank was the same as if the reference was
form to the defendant (Ecotrade). The charterparty provided in cl 9 that
simply to ‘the charterparty’ and the omission did not demonstrate an
‘the captain was to sign bills of lading at such rate of freight as
intent to negative the incorporation. There was no disparity between
presented without prejudice to the charterparty’, whilst cl 35 states that
the bill which under the charterparty the charterers were entitled to
‘any act, neglect, default or error of judgment whatsoever in the
present and the bill which they did present (see Ben Shipping Co v An-
management and/or navigation of the vessel always excepted’.
Bord Bainne [1986] 2 Lloyd’s Rep 285).
Ecotrade required the master to sign a bill of lading on the
The outcome is therefore that the questions in relation to
Cogenbill form which named Ecotrade as shippers and another
indemnity and damages did not arise. The relevant provisions under the
company (Titan) as consignee and provided that the terms of the
charterparty were therefore properly incorporated in the bill of lading.
charterparty were incorporated.
Although the issue is not material to the case, Cresswell J’s opinion was
A blank on the front of the bill of lading which should have contained the date of the charterparty was not filled in.
further that as a matter of Greek law, cl 35 had been properly incorporated.
The ship caused damage to the consignee’s discharging crane through bad navigation at the port of discharge in Greece. Orinoco was being sued by the consignee in Greece for this damage. Orinoco
Comment
argued that:
This case highlights the nature of the charterer’s contractual duty to the
•
by requiring the master to sign the bill of lading with the blank
shipowner as regards the master’s act of signing the bill of lading. Here,
entry Ecotrade was in breach of the charterparty; or
that issue was indeed crucial as the shipowners were under the
the request to sign such a bill gave rise to an obligation to
impression that the bill of lading in failing to identify the date of the
indemnify Orinoco against the consequences of the master
charterparty could have very serious repercussions under Greek law.
signing such a bill; and further,
Cresswell J’s decision concentrated on the fact that the charter had
Ecotrade’s conduct in requiring the master to sign a bill of
called for the signing of a bill as presented and as such, the failure to
lading in this defective form had caused loss to Orinoco, in that
insert the relevant date was not fatal and did not affect the
as a matter of Greek law, the failure would have rendered cl 1
incorporation of the terms of the charterparty into the bill of lading. That
of the bill of lading ineffective to incorporate the exception in cl
failure was to have the same effect as a reference in the bill of lading ‘as
35 of the charterparty in the Greek proceedings.
per charterparty’. In such a case, incorporation of the charterparty was
•
•
Orinoco was therefore seeking a declaration that Ecotrade should either
deemed by Cresswell J to be axiomatic unless there are words or
indemnify them or pay damages in respect of their potential loss at the
evidence to the contrary. As far as the judge was concerned, the
Greek proceedings.
omission did not negative the presumed intention to have the terms of
• •
•
Other preliminary issues worth considering include:
the charterparty incorporated in the bill of lading. It is questionable
whether under the English law as the applicable law, the bill of
whether this approach supports the proposition in The Varenna [1983]
lading was a contractual and proper one;
2 Lloyd’s Rep 592 (overruling the view expressed by Staughton J (as he
whether Ecotrade was in breach of any express and/or implied
then was) in The Emmanuel Colocotronis (No 2) [1982] 1 Lloyd’s Rep
terms of the charterparty in failing to fill in the blanks on the
286) that operative words of incorporation should be found on the bill
face of the bill of lading, in particular in failing specifically to
of lading itself and that it should be clear from the bill of lading that the
identify the governing charterparty by date or otherwise;
terms of the charterparty are to be incorporated. Having said that, it
whether Ecotrade was under an obligation to indemnify
would appear from the facts that it was fairly clear from the bill of
Orinoco against the consequences of requiring the master to
lading that it was issued subject to a charterparty; only the date of the
sign the bill of lading in that form.
charterparty had not been inserted.
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It might also be remembered that, when it comes to
bill of lading was an intentional act inconsistent with the true
construction of the bill of lading, to determine whether an
owner’s rights; albeit done in ignorance of them and without
incorporation has been achieved, the court would take a contra
intending to challenge them. Such intentional but ‘innocent’
proferentum approach, a fortiori, when it relates to an exclusion of liability clause in the charterparty (see The Varenna (above)).
delivery is sufficient to constitute conversion. (b)
As a matter of policy, if one of two innocent people must suffer
The facts suggest an issue which hitherto has not been
for the fraud of a third, it was better that the loss fell on the
addressed specifically – the extent of a charterer’s undertaking (if any) to
shipowner, whose responsibility it was both to look to the
the shipowner that his instructions to the shipmaster in signing bills of
integrity of bills issued by himself, and to care for the cargo in
lading should comply with any foreign law’s effect on the incorporation
his possession and to deliver it right, rather than on the true
of terms. It is trite law that the bill of lading issued by the shipmaster
goods owner, who held a valid bill and expected to receive his
should be lawful for all intent and purposes. However, this, it would seem, does not adequately deal with the issue of whether there is to be
goods in return for it. (c)
As a matter of construction, it is important to refer to Clarke J’s
an implied term that the bill of lading instructed for issue by the
statement in The Ines [1995] 2 Lloyd’s Rep 144, that the
charterer should ensure that incorporation of the charterparty (and its
contract of carriage carried a fundamental promise not to
limitation clauses for the protection of the shipowner) is valid under all
deliver other than in return for an ‘original bill of lading’ (see,
relevant foreign law. It is naturally open to the parties to stipulate for
also, the Court of Appeal’s decision in The Houda). The
such an occasion in the charter as alluded to in Ben Shipping Co v An-
exclusion clause was not a cesser clause, nor could it be
Bord Bainne [1986] 2 Lloyd’s Rep 285, but, where the charter is silent,
construed as such. A natural reading of the clause does not
the issue is tantalisingly unclear. Much, it seems, would depend on the
suggest that misdelivery of the goods by the defendants out of
circumstances of the case.
their possession whether such misdelivery lay in the absence of any bill of lading or in the absence of an original or genuine bill
Forged bills of lading – shipowner’s liability for conversion – whether exclusion clause could be relied on
of lading. If this were permissible, it would clearly contravene the ‘fundamental nature of the promise not to deliver other than against an original bill of lading’. The Court of Appeal upheld Rix J’s judgment. It was argued by the defendants that Rix J had misapplied the law by characterising what
Motis Exports Ltd v Dampskibsselskabet AF 1912 and Aktieselskabat Dampskibsselskabet Sevndborg (1999) judgment 21 December, CA
occurred as misdelivery and not theft. They submitted that if the taking of the goods by the rogues was theft, namely, the removal of the goods without the consent of the bailee (shipowners), the clause should be operative to protect them. The Court of Appeal disagreed. The court held that what
Facts
occurred was in fact a misdelivery. A forged bill of lading in the eyes of
The claimant was the shipper of goods under a number of bills of
the law was a nullity; simply an ineffective piece of paper. Delivery of
lading. The goods were to be carried from Chinese and Hong Kong
the goods was therefore not in exchange for the original bill of lading
ports to West Africa. The bills of lading were stated to be ‘to order’ of
but for a worthless piece of paper.
the consignees. The defendants were the carrier who issued the bills of
Moreover, as a matter of construction, it is not the policy of the courts to support a construction which detracted from the true and
lading. The preliminary issue in this case was whether the defendants were liable under the bills of lading having delivered the goods to
fundamental nature of the undertaking of the carrier to deliver against original and genuine bills of lading.
rogues who had presented forged bills of lading at the ports of discharge. The defendants argued that they were just as much the victims of the fraud as the true owners of the cargo and they were entitled to rely on a clause in the bills of lading which exempted them from ‘any liability for the goods after discharge’.
Held Mr Justice Rix at the High Court held that the carriers were not entitled to rely on the clause. His Lordship’s reasons were as follow: (a)
Comment This case reiterates the rule that the carrier’s duty to deliver the goods is strictly confined to a good presentation of relevant documents. If the defendants’ submission was accepted, that would derogate from an obligation of fundamental importance. Hence, as a matter of construction, the court was right to adopt a contra proferentem approach. Where does the law stand on where the risk of misdelivery
As a matter of law, a forged bill of lading is not as good as a
should fall where there are two innocent persons have suffered the
genuine bill of lading for the purposes of the ‘simple working
fraud of a third party? Two points should be noted. First, the bill of
rule’ that delivery without the production of a bill of lading was
lading is a document of title to the goods. This being the case, whoever
at the shipowner’s peril (Kuwait Petroleum Corp v I & D Oil
is in possession of the genuine bill of lading should be entitled to
Carriers Ltd sub nom ‘The Houda’ [1994] 2 Lloyd’s Rep 541). A
delivery. This places a heavy obligation on the shipowner to deliver
shipowner was not obliged to deliver against a forged bill of
only against original and genuine documents. The cargo owner is
lading. It therefore followed that he was not entitled so to do. It
therefore entitled to rely on the document in his hands. Secondly, the
was no defence to say that he was innocent and had been
bill of lading is issued by the shipowner. Whatever the practicalities, the
deceived by the rogue into delivering the goods against a forged
shipowner (and his servants and agents) should be presumed to be able
bill. The delivery of goods to persons who presented a forged
to recognise his own bills of lading. These presumptions work in the
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favour of the cargo owner; hence, the exclusion clause should be
The judge went on to say that the authority given by the Issuing Bank to
construed accordingly. In order to avoid liability for a fundamental
the Confirming Bank in a deferred payment letter of credit is to pay at
promise, the clause must be drafted in such clarity and precision that
maturity. The consequent obligation is, first, to reimburse on payment
the court has no option but to give effect to the presumed intention of
being made at maturity and not before. If at that time there is
the parties (see the Australian case of The Antwerpen [1994] 1 Lloyd’s
established fraud, there is no obligation on the Confirming Bank to pay
LR 213). Where the clause is so clearly drafted, the cargo owner must
nor on the Issuing Bank to reimburse.
be presumed to be aware of the risks involved and the maxim caveat emptor should therefore apply.
The judge went on to hold that the assignment was an assignment of the beneficiary’s rights and those (assuming that there is fraud) were nullified by fraud. As such, where the beneficiary had no
Letters of credit – confirmed deferred payment – early discounting of letter of credit – risk of fraud
right to payment, there was no right to payment which it could assign to Santander. Thus, Banco Santander could not require Paribas to reimburse them. The Court of Appeal dismissed Banco Santander’s appeal. The
Banco Santander SA v Bayfern Ltd and Others (2000) judgment 25 February, CA
court considered that the risk of fraud on the part of the beneficiary of a confirmed deferred payment letter of credit was to be borne by the confirming bank where the fraud was discovered, after that bank had discounted its own payment obligations to the beneficiary and had paid
Facts
over the discounted sum, but before the maturity date of the letter of
A letter of credit was issued by Paribas Bank in favour of Bayfern Ltd. The letter of credit was advised and confirmed by Banco Santander.
credit.
The maturity date of the letter of credit was 27 November 1998. As
Comment
between Paribas and Santander, the former undertook ‘at maturity … to
Readers might recall that Langley J’s judgment was noted in [1999]
cover Santander in accordance with their instructions’.
SLRYB 147. As far as the Court of Appeal’s judgment is concerned,
As is the practice with many traders, Bayfern requested
although it does not throw up many new arguments, less attention is
Santander to discount the letter of credit before the date of maturity.
given to the operation of the UCP and more emphasis paid to the issue
This is known as ‘early discounting’. Santander agreed. Documents
of assignment.
were presented to Santander; payment followed on 17 June 1998 and the documents were subsequently transmitted to Paribas. On 24 June
The Court of Appeal proceeded on two issues: (1)
whether the claim made by Santander on the date of maturity
1998, Paribas advised Santander that the documents supplied ‘should
was as assignee of Bayfern and if so, whether there was any
be considered to be false’.
reason why Paribas did not have the same defence which it
The main issue was whether Banco Santander was entitled to be reimbursed by Paribas.
would have had against Bayfern; and (2)
whether Santander’s claim was made as confirming bank for ‘cover’ (as stated in the letter of credit) or ‘reimbursement’ (as
Held
provided for under the UCP 500).
At first instance, Langley J stated that the obligation of the issuing bank
The Court of Appeal agreed with Langley J that where the action was
was governed by Art 10(ii)(d) of UCP 500, which states:
founded on assignment, there was no rule which prevented Paribas
By nominating another bank, or by allowing for
from raising the fraud defence against an innocent assignee for value
negotiation by any bank, or by authorising or requesting
without notice. In this case, the parties had relied on the assignment as
another bank to add its confirmation, the Issuing Bank
the tool for the transfer of such rights, they must live with the resultant
authorises such bank to pay, accept Draft(s) or negotiate
consequences. As far as the court was concerned, the parties had
as the case may be, against documents which appear on
agreed, for whatever reason, that they would not provide a negotiable
their face to be in compliance with the terms and
instrument and did not contractually provide for the protection for
conditions of the Credit and undertakes to reimburse such
assignees (which a negotiable instrument would have guaranteed). As
bank in accordance with the provisions of these Articles.
such, the assignee could not succeed.
And not by Art 14(i), which provides: (a)
It should be noted that what the court meant here is that where
When the Issuing Bank authorises another bank
the early discounting was in relation to a bill of exchange rather than a
to pay, incur a deferred payment undertaking,
letter of credit, then the transferee/indorsee of the bill would have been
accept Draft(s) or negotiate against documents
protected as a holder for value and without notice. That was not the
which appear on their face to be in compliance
case here. What Bayfern did was to discount the letter of credit itself,
with the terms and conditions of the Credit, the
not a Draft (bill of exchange) drawn on the Issuing Bank.
Issuing Bank and the Confirming Bank, if any, are (i)
(ii)
The second issue was whether Santander was claiming for ‘cover’ or ‘reimbursement’. The court took the view that Art 10(ii)(d) of
bound: to reimburse the Nominated Bank which
UCP 500 would apply if Santander had paid the discounted sum to
has paid, incurred a deferred payment
Bayfern in discharge of the obligation of Paribas and Santander under
undertaking, accepted Draft(s) or
the letter of credit. There was no authorisation from Paribas permitting
negotiated;
Santander to negotiate the letter of credit. Moreover, Santander did not
to take up the documents.
seek such authorisation from Paribas. All this goes to show that
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Santander had acted of its own accord and must accordingly bear all
deceive. The fact that the document checkers had made mistakes did
attendant risks.
not prevent SCB from succeeding in its claim. There was no evidence
Banks in Santander’s position should either insist on using
of any criminal or reprehensible conduct on the part of the document
acceptance credits or on authorisation from the Issuing Bank to
checkers to deny SCB a legal remedy. SCB’s claim was therefore not
negotiate a discount and to reimburse them subsequently. What are
founded on an immoral or an illegal act and, as such, the plea ex turpi
acceptance credits and how do they overcome the problem Santander
causa did not arise.
found themselves in? Article 9(a)(iii) provides that an irrevocable credit
PNSC appealed against the decision.
constitutes a definite undertaking of the Issuing Bank, provided that the stipulated documents are presented to the Nominated Bank or to the Issuing Bank and that the terms of the Credit are complied with – if the Credit provides for acceptance: (a)
by the Issuing Bank – to accept Draft(s) drawn by the Beneficiary on the Issuing Bank and pay them at maturity; or
(b)
by another drawee bank – to accept and pay at maturity Draft(s) drawn by the Beneficiary on the Issuing Bank in the event the drawee bank stipulated in the Credit does not accept Draft(s) drawn on it, or to pay Draft(s) accepted but not paid by such drawee bank at maturity.
This refers to the use of a bill of exchange (Draft), namely, a negotiable instrument to ensure that assignees are shielded from the original beneficiary’s defects in title. It has been suggested by some that this case has dealt a severe blow on the use of deferred payment undertakings. It is arguable as to whether the implications of this case are indeed that serious but one thing is clear, confirming and negotiating banks must act with great care when giving value for instruments (undertakings such as a letter of credit) which are not negotiable instruments. Proper authorisation for discounting, negotiation and reimbursement should be obtained.
Deceit: presentation of documents under a confirmed letter of credit; false bills of lading; Law Reform (Contributory Negligence) Act 1945
Held The Court of Appeal, by a majority with Sir Anthony Evans (dissenting), dismissed the appeal by PNSC. The following issues arose in the appeal: (a)
whether SCB had a good cause of action against PNSC;
(b)
whether PNSC could claim a contribution from SCB for SCB’s deceit committed against Incombank.
It seemed quite clear that SCB had a cause of action in deceit against PNSC because the false bills of lading were issued by PNSC. As far as SCB’s own ‘fault’ is concerned, the court held that if SCB had knowingly or recklessly made a false statement to induce payment by Incombank, then this conduct was such as to expose itself to liability for the tort of deceit if the false statement was relied upon and damage resulted. It was not necessary that the maker was dishonest in the criminal law sense of the word. Lord Justice Aldous (one of the majority) held that an established claim for damages for deceit could not be defeated by a defence that the claimant carried out acts or omissions which contributed to the damage it suffered. Accordingly, the court should not reduce the damages payable under s 1(1) of the Law Reform (Contributory Negligence) Act 1945. The judge held that the test for the maxim ex turpi causa non oritur actio had to be applied strictly and narrowly. In the circumstances and applying the principle in Tinsley v Milligan [1994] 1 AC 340, the conduct of SCB was not so egregious, though potentially unlawful, and its share of responsibility for its own loss was not so weighty, that the court should refuse to entertain the claim against the
Standard Chartered Bank v Pakistan National Shipping Corp (No 2), CA: Aldous and Ward LJJ, Sir Anthony Evans (2000) Lawtel, 27 July , CA
defendants. The false statements made to the issuing bank by SCB had been made as a result of the negligence of SCB’s employees (the document checkers). These statements were not actionable at the suit of the
Facts Standard Chartered Bank (SCB) confirmed a letter of credit issued by a Vietnamese bank (Incombank). The first defendants, the Pakistan National Shipping Corporation (PNSC), the brokers and the seller of the goods were sued by SCB for damages arising out of the presentation of falsely dated bills of lading to SCB in 1993.
issuing bank because it had refused to pay on the basis of discrepancies in the documents. It had thereby not relied on those statements to its detriment.
Comment It is quite clear that, until the passing of the Law Reform (Contributory
It was established beyond a doubt that the documents presented
Negligence) Act 1945, negligence was a complete defence to an action
before the expiry date of the letter of credit were incomplete. SCB
in tort. The Act remedied that injustice by allowing the courts to reduce
sought payment from Incombank, falsely stating that the documents
the claimant’s damages. Section 1(1) provides that, where any person
had been received prior to the expiry date. Incombank refused to pay
suffers damage as the result partly of his own fault and partly of the fault
on the basis of certain discrepancies in the documents not noted by
of any other person or persons, a claim in respect of that damage shall
SCB.
not be defeated by reason of the fault of the person suffering the SCB sought to recover damages in deceit against the first
damage, but the damages recoverable in respect thereof shall be
defendant but the latter submitted that the claim was not enforceable
reduced to such an extent as the Court thinks just and equitable having
on the basis of ex turpi causa as SCB had accepted the documents late
regard to the claimant’s share in the responsibility for the damage.
and had been prepared to overlook a number of discrepancies.
It should be highlighted that there were two ‘faults’ as far as SCB
The trial judge, Cresswell J, held that the defendants had issued
was concerned – first, SCB’s employees were negligent in checking the
false bills of lading knowing that they would be presented to a bank for
documents and, secondly, SCB had made a deceitful statement to
payment under a letter of credit. There was clearly an intention to
Incombank. Do these faults allow PNSC to have the damages
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held to constitute contributory negligence. His Lordship’s view was that if suicide could amount to contributory negligence, so could the intentional act of deceit of the bank subject to its meeting the qualifying
... ‘fault’ means negligence, breach of statutory duty or
words in s 4 that it is an act or omission ‘which would, apart from this
other act or omission which gives rise to a liability in tort
Act, give rise to the defence of contributory negligence’. That becomes
or would, apart from this Act, give rise to the defence of
the next important question to consider. Lord Justice Ward considered
contributory negligence.
that it is important to look at first principles to decide whether the deceit
There are clearly two limbs to s 4 – first, negligence, breach of statutory
of the bank is an act or omission which would apart from the Act give
duty or other act or omission which gives rise to a liability in tort and,
rise to the defence of contributory negligence. Assistance was derived
secondly, negligence, breach of a statutory duty or other act or
from Lord Justice Lindley’s speech in The Bernina (1887) 12 PD 58:
omission which gives rise to the defence of contributory negligence.
(1) A without fault of his own is injured by the negligence
As far as Lord Justice Aldous was concerned, the negligence of
of B, then B is liable to A; (2) A by his own fault is injured
the document checkers and the deceit of SCB must be actionable.
by B without fault on his part, then B is not liable to A; (3)
Negligence which is not actionable, as is the case with the document
A is injured by B by the fault more or less of both
checkers, is not sufficient (negligence is not actionable per se).
combined then the following further distinctions have to
Similarly, as the deceit resulted in no damage, it too was not actionable.
be made: (a) If, notwithstanding B’s negligence, A with
This takes to us to the second limb in s 4 – whether there was
reasonable care could have avoided the injury, he cannot
negligence, breach of a statutory giving rise to a defence of contributory
sue B: Butterfield v Forrester; Bridge v Grand Junction Ry
negligence. In this regard, counsel for SCB submitted that the words
Co; Dowell v General Steam Navigation Co; (b) If,
‘contributory negligence’ had in 1945 a recognised meaning. Before
notwithstanding A’s negligence, B with reasonable care
1945, contributory negligence was a defence to a claim in negligence
could have avoided injuring A, A can sue B: Tuff v
or a claim considered to be akin to negligence, such as breach of
Warman; Radley v London and North Western Ry Co;
statutory duty. The 1945 Act was an Act to remedy the injustice of such
Davies v Mann; (c) If there has been as much want of
a defence when the parties were both at fault. Importantly, contributory
reasonable care on A’s part as on B’s, or, in other words,
negligence was not a defence to an action for deceit. In the case of
if the proximate cause of the injury is the want of
deceit, the sole issue was whether the deceit was an inducement or
reasonable care on both sides, A cannot sue B. In such a
cause of the plaintiff acting to his detriment. If that was established, the
case, A cannot with truth say that he has been injured by
plaintiff succeeded irrespective of whether there were other causes for
B’s negligence, he can only with truth say that he has
the plaintiff acting to his detriment, including the plaintiff’s negligence,
been injured by his own carelessness and B’s negligence,
even though that negligence resulted in the plaintiff failing to discover
and the two combined give no cause of action at
the untruth of the false representation. Lord Justice Aldous took the
common law. This follows from the two sets of decisions
same view. His Lordship said, ‘whatever be the reason, it is clear from
already referred. But why in such a case the damages
the authorities that an action for deceit could not be and cannot be
should not be apportioned, I do not profess to
defeated by raising the defence that there were acts or omissions which
understand. However, as already stated, the law on this
contributed to the damage’. In particular, His Lordship referred to
point is settled and not open to judicial discussion.
Reynell v Sprye (1852) 1 De GM & G 660. In that case, Lord Cranworth
Furthermore, in Tuff v Warman (1858) 5 CB (NS) 573, 585, Wightman
LCJ said:
J, delivering the judgment of the Exchequer Chamber, said:
... it is no answer to the charge of imputed fraud to say
It appears to us that the proper question for the jury in this
that the party alleged to be guilty of it recommended the
case, and indeed others of the like kind, is whether the
other to take advice, or even put into his hands the means
damage was occasioned entirely by the negligence or
of discovering the truth. However negligent the party may
improper conduct of the defendant, or whether the
have been to whom the incorrect statement has been
plaintiff himself so far contributed to the misfortune by his
made, yet that is a matter affording no ground of defence
own negligence or want of ordinary and common care
to the other. No man can complain that another has too
and caution, that, but for such negligence or want of
implicitly relied on the truth of what he has himself
ordinary care and caution on his part, the misfortune
stated. This principle was fully recognized in the case of
would not have happened. In the first place, the plaintiff
Dobell v Stevens (3 B&C 625), referred to by my learned
would be entitled to recover, in the latter not; as, but for
brother in the course of the argument.
his own fault, the misfortune would not have happened.
This is supported in Redgrave v Hurd (1881) 20 Ch D 1 where it was
Applying that to an action for damages for deceit, the issue would be
held that a defendant who intended that the claimant should rely on the
whether or not the damage was occasioned entirely by the improper
statement which he made to him cannot contend that the claimant was
deceitful conduct of the defendant or whether but for the claimant’s
careless in failing to check the accuracy of the statement.
own want of care or for his own reasons the misfortune would not have
It is interesting to note that, although Lord Justice Ward also
happened to him. It boils down to a matter of causation.
dismissed PNSC’s appeal, His Lordship’s reasoning was slightly
Lord Justice Ward’s position was therefore that the claimant’s
different from that of Lord Justice Aldous. He held that s 4 was probably
contributory fault would not have been permitted to defeat the
wide enough to cover torts intentionally committed, including deceit.
claimant’s claim for damages for deceit had the question arisen before
His Lordship referred to Reeves v Commissioner of Police of the
the 1945 Act came into operation because there was no loss caused by
Metropolis [2000] 1 AC 360 where the intentional act of suicide was
the bank’s deceit. His Lordship said:
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L AW
Deceit practised on Incombank would cause damage to
to pay for its share of a reinsurance contract covering Canadian home
Incombank, not damage to Standard Chartered Bank
occupiers’ insurance policies which the claimant had asked its broker,
themselves.
a company registered in France, to arrange. Action was instituted in
The two Lord Justices approached the matter from different angles but
France against the defendant. The defendant challenged the French
arrived at the same result – Lord Justice Aldous took the view that ‘fault’
court’s jurisdiction on the ground that under Art 2 or 5(1) of the Brussels
under s 4 did not include fraudulent acts or omissions which deceit
Convention the proper forum for the dispute was Belgium. The
necessarily entails; Lord Justice Ward on the other hand argued that
claimant contended that, since it was not domiciled in a Contracting
‘fault’ could include intentional acts in reliance on the House of Lords’
State, the Convention did not apply. Additionally, it was raised in the
decision in Reeves but, in the present case, there was no operative loss
dispute whether reinsurance contracts are covered by s 3 (Arts 7–12a)
caused by the deceit.
of the Convention. The Cour d’Appel referred these questions to the
Sir Anthony Evans gave the dissenting judgment. The judge
European Court of Justice.
found that Reeves provided sufficient authority for finding that intentional acts including deceit could amount to contributory negligence at common law. As regards apportionment, he found that SCB’s fault was based on the failure to check the documents properly and its attempted deception of Incombank. If SCB had not attempted to deceive Incombank, as it succeeded in doing, it would not have made any payment to the sellers and no loss would have been suffered. This might be criticised on the basis that there was insufficient attention paid to the causation issue. The definition of ‘fault’ has by no means been made clearer in this case. The issue as to whether deceit should be placed on the same footing as ‘intention torts’ for the purposes of the definition of ‘fault’ is particularly difficult given the judgment in Reeves. The question is whether deceit could amount to an act or omission which before the enactment of the 1945 Act (namely, at common law) would have
Held The court held that the basic jurisdiction rule under Art 2 was that persons domiciled in a Contracting State were to be sued in that State whatever their nationality. Sections 2–6 of Title II set out exhaustively rules on the only permitted exceptions. It is quite clear that the domicile of the claimant was wholly irrelevant in those provisions. As for s 3 in Title II on insurance contracts, the rationale was the protection of the insured who is normally the economically weaker party in an insurance contract, being less able to negotiate the terms of the insurance contract. That is clearly not the case in a reinsurance contract. Both parties are presumed to be of equal bargaining strengths; as such, s 3 could not be extended to cover reinsurance contracts.
amounted to what was ‘contributory negligence’. This is not an easy
Comment
task considering the fact that there are few authorities on the subject.
This is an important European Court of Justice ruling. Although many
It is understandable for the reader to expect the claimant’s
lawyers already take the view that reinsurance contracts are not of the
Augean conduct to be punished and damages be therefore accordingly
same nature as insurance contracts, this decision settles the issue once
apportioned, however, it should be remembered that it was the
and for all as regards the special protective rules in the Brussels
defendant who set out to deceive and succeeded in deceiving. The less
Convention. Section 3 contains various provisions for the protection of a
than noble motives of the claimant do not reduce that dishonesty.
presumed weaker party in the insurance contract; that party is not
Commercial fraud must be condemned. It can only be properly
present in a reinsurance agreement. Given the ruling in this case, it
condemned by an award of the whole of the damage which the
would appear inescapable that a same conclusion would be arrived at as
defendant intended to cause. Highwaymen in commerce forfeit the
regards the special protective rules on insurance contracts in the Rome
right to just and equitable treatment.
Convention on Applicable Law of the Contract. As far as Art 2 is concerned, again although there is no reference to the domicile of the
Brussels Convention – jurisdiction rules – whether applicable to claimants domiciled in a non-Member State Group Josi Reinsurance Co SA v Universal General Insurance Co (Case C-412/98) (2000) Lawtel, 13 July, ECJ
Facts The claimant in this case is a Canadian insurance company. They alleged that the defendant, a Belgian reinsurance company, had failed
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plaintiff or claimant, it would defeat the object of the Brussels Convention which is to ensure that there is adequate and equal judicial protection of defendants domiciled in the EU to allow a claimant who is not domiciled in the EU to claim special dispensation from the regime.
J U R I S P R U D E N C E
Articles John Stuart Mill on Liberty and the Law ..................................................................160 Judge Posner on pragmatic jurisprudence................................................................163 Dean Pound’s theory of interests..............................................................................166
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John Stuart Mill on Liberty and the Law by LB Curzon, Barrister and Lecturer in Law ‘The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self protection ... to prevent harm to others ... his own good, either physical or moral, is not a sufficient warrant.’ The basic themes of JS Mill’s seminal essay, On Liberty (1859), are set out below for purposes of revision of syllabus requirements concerning the place of Utilitarianism in jurisprudential thought. The essence of Utilitarianism (see [1993] SLRYB 132) is derived from the thesis of Bentham (1748–1832): ‘That which is conformable to the utility or the interests of a community is what tends to augment the total sum of the happiness of the individuals that compose it.’ (Utility is ‘the property or tendency of a thing to prevent some evil or to procure some good.’) Mill sought to link utility to the concept of justice; he visualised the law in terms of its potential for bringing members of society nearer to ‘the best thing they can be’.
Background JS Mill (1806–73), son of the eminent philosopher, James Mill, was a polymath who made significant contributions to logic, political economy and jurisprudence. Following his remarkable education under his father’s guidance (see his Autobiography (1873)), he considered a career in law, but decided to follow his father into the East India Company, in which he served from 1822–57. He represented the Westminster constituency in Parliament from 1865–68, and devoted the remainder of his life to research and writing. Mill’s interest in the law embraced the study of its theory and practice. He contributed essays to The Jurist, was involved in the editing of Bentham’s Rationale of Judicial Evidence, attended lectures on jurisprudence by his friend, John Austin (see [1993] SLRYB 137), and sought to develop legal theory on the basis of its communal significance. His work in Parliament was characterised by an interest in the problems of law in action: he supported, in particular, land tenure reform, and advocated the extension of voting rights to women. On Liberty encapsulates his thinking on problems of individual freedom within the context of law.
The literature Mill’s principal political and legal works – On Liberty (1859), Utilitarianism (1861), Representative Government (1862), The Subjection of Women (1869) – appear in various editions, including those by Random House, OUP, and the University of Toronto Press. General works on Mill’s thought include Britton’s John Stuart Mill (Penguin, 1953), Mcloskey’s Mill: A Critical Study (OUP, 1971), and Thomas’ Mill (OUP, 1984).Works relating specifically to On Liberty include Cooper’s New Essays on Mill (Toronto, 1979), Ten’s Mill on Liberty (OUP, 1980), Himmelfarb’s On Liberty and Liberalism (ICS,
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1990), Ryan’s Mill (Norton, 1997). Extensive bibliographies are given in Himmelfarb and Ryan.
Utilitarianism in its legal context Mill accepted Bentham’s precept that ‘actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness’. But, he argued, happiness is not the only real test for goodness; it is absurd, therefore, to estimate pleasure and happiness in terms of quantity alone – quality must be taken into account. Man’s pleasure can never be a standard of, say, morality; only the full employment of man’s higher faculties tends to true happiness and personal fulfilment. The ideal for the community is to be found in ‘the golden rule’: In the golden rule of Jesus, we read the complete spirit of the ethics of utility. To do as one would be done by, and to love one’s neighbour as oneself constitute the ideal of utilitarian perfection. Appropriate social and legal structures and practices are necessary if the utilitarian ideal is to be realised. Legislators, jurists and the community at large must accept that: ... laws and social arrangements should place the interest of every individual as nearly as possible in harmony with the interest of the whole; and education and opinion should so use its power that a direct impulse to promote the general good may be in every individual one of the habitual motives of action. Bentham’s view of justice as ‘a phantom ... feigned for the convenience of discourse, whose dictates are the dictates of utility applied to particular cases’ is not acceptable to Mill. Justice is, for him, a
prerequisite of a truly civilised society; justice under the law implies ‘that which is not only right to do and wrong not to do, but which some individual can claim from us as his moral right’. Justice involves rules of conduct and the sentiment which sanctions those rules: the rules are intended for the good of all and the sentiment dictates that those who infringe the rules ought to be punished by the law.
On Liberty: the framework Mill’s essay deals with ‘civil or social liberty: the nature and limits of the power which can be legitimately exercised by society over the individual ... a question likely soon to make itself recognised as the vital question of the future’. It should be noted that Mill is concerned not so much with the power of the organs of the state as with the wider power of society. Difficulties emerge not only from the exercise of a
J U R I S P R U D E N C E government’s powers, but from society’s ‘moral coercion of public opinion’, making for the so called ‘tyranny of the majority’, latent, perhaps, in all democracies. Intolerance of that which is unconventional, and perception of unusual or novel opinions as threats to the community are viewed by Mill as inimical to liberty and the true purposes of government and law. Liberty is essential for the growth of the human personality. What more or better can be said of any condition of human affairs than that it brings human beings themselves nearer to their full growth? Has the community, through its governing organs and laws, the duty to make every citizen ‘the best he can be’? Mill answers that there are limits to the government’s rights to interfere in the citizen’s life. Some areas of human behaviour ought to be accepted as being outside the proper sphere of communal control; they are: The inward domain of consciousness, demanding liberty of conscience in the most comprehensive sense; liberty of
Freedom of expression and the law Chapter II of On Liberty (‘Of the Liberty of Thought and Discussion’) shows Mill at his most eloquent, powerful and persuasive. He had in mind, in the writing of this chapter, the Government Press Prosecutions of 1858 (‘ill judged interference with the liberty of public discussion’) and states his belief in the necessity of freedom of expression except where ‘the circumstances in which [opinions] are expressed are such as to constitute their expression a positive instigation to some mischievous deed.’ (Consider, at this point, the Public Order Act 1986, s 18 (‘Use of words or behaviour or display of written material’).) Note that Mill is not propagating an original doctrine: he stands in a long, imposing line of English dissenters, nonconformists and martyrs for whom an understanding of truth demands unfettered liberty of expression. Thus, Bunyan (1628–88), preacher and writer, called
scientific, moral or theological; liberty of tastes and
from his cell in Bedford prison for recognition of the fact that ‘truth profits from heresy’. Milton (1608–74), fearful of the growth of book censorship, spoke, in the Areopagitica (1644), of the need to recognise that truth may have more shapes than one, and that:
pursuits and liberty of combination among individuals;
Though all the winds of doctrine were let loose to play on
freedom to unite for any purpose not involving harm to
the earth, so Truth be in the field, we do injuriously by
others.
licensing and prohibiting to misdoubt her strength and let
thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative,
It should not be thought that Mill’s essay is a mere ‘museum document’ in the history of jurisprudential theory; on the contrary, it is seen as of much relevance to contemporary legal thought and political action. For many, it forms, together with Milton’s majestic Areopagitica (1644), the intellectual cornerstone of the liberty of speech which we take for granted. It is of interest to note that parts of On Liberty were referred to repeatedly in recent discussions in Parliament concerning the Human Rights Act 1998, and students will be aware of the overtones of Mill’s arguments in the Hart-Devlin debate concerning the Wolfenden Report (1957) (Cmnd 247) which led to the Sexual Offences Act 1967 which decriminalised homosexual behaviour in some circumstances (see [1992] SLRYB 132).
Compulsion under the law When may the community, through its legal organs, seek ‘rightfully’ to exercise its powers over a citizen against his will? Mill answers: only to
her and Falsehood grapple; whoever knew Truth put to the worse in a free and open encounter. Mill’s argument is stated in precise, pragmatic terms. If all mankind minus one person are of one opinion, society and its laws are no more justified in seeking to silence that person than he would be in attempting to silence the rest of mankind. How may we measure the loss to mankind where it has been deprived of ‘a clear perception and livelier impression of truth produced by its collision with error’? Mill rests his case firmly on four grounds. First, an opinion which is silenced may, for all we know, be true. To deny this is to assume that we are infallible. Secondly, an opinion which has been silenced may contain a portion of truth. The generally accepted opinion on any subject is very rarely the entire truth, so that it is only by the collision of adverse opinions that the remainder of the truth might be uncovered. Thirdly, unless a received truth is subjected to continuous and vigorous argument by its opponents, it will degenerate into mere prejudice with no understanding of its rational foundations. Fourthly, where argument
would be advantageous for him to act in that way. Let the community argue with him, let it advise, instruct, reason, remonstrate, but no more
is absent, a doctrine will become enfeebled and change into dogma, preventing the growth of conviction from reason or personal experience. Let thought be free and unconfined, Mill argues. ‘Truth has no chance but in proportion as every side of it, every opinion which
than this. Interference by the law is justifiable only if ‘the conduct from which it is desired to deter him is calculated to produce evil to someone else’. ‘Over himself, over his own body and mind, the
embodies any fraction of the truth, not only finds advocates, but is so advocated as to be listened to.’ And, where the expression of opinion necessitates acting upon it, its proponents must be left free to do so
individual is sovereign.’ To the individual belongs that part of his life in which he is interested; to society, that part which chiefly interests it. Above all, education and persuasion must be used so as to diminish the
without hindrance in the name of morality or the law, always provided that the activity takes place at their own risk and that no suffering is caused to others as a result.
attractiveness of those manifestations of individual human behaviour which adversely affect others. A society in which legal sanctions are employed so that individual liberties are restricted because they are not respected, is not ‘free’; human liberties must be allowed to exist wherever possible in
(At this point, readers might care to apply Mill’s basic concepts to the following arguments. ‘Propaganda calling for the repeal of the Abortion Act 1967 ought to be banned by law because, objectively, it
absolute and unqualified form. The only fundamental freedom worthy of the name resides in the pursuit of one’s own good, always provided that others’ rights are respected. The law must accept that the individual
guidance as to what they ought or ought not to read.’ ‘The restrictions on music “raves” under the Criminal Justice and Public Order Act 1994, s 63(1), ought to be lifted since they run counter to the rights of
is the only proper guardian of his own health – bodily, mental and spiritual. No one has the right to insist that a human being ‘of ripe years’ shall not do with his own life whatever he chooses.
young persons to express freely all aspects of their culture.’)
prevent harm to others. The citizen should be free to do as he wishes even though his own well being is affected adversely. The law has no inherent ‘right’ to force him to act in a particular way merely because it
aims at a restriction of the rights of women.’ ‘The repeal of the Obscene Publications Act 1959 is essential since mature persons need no
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On Liberty: ‘a distorted perception of reality’ The publication of Mill’s essay was followed by much criticism suggesting that he had failed to understand the reality of social life and was affected by a muddled perception of the essence and vagaries of human nature. Sir James Fitzjames Stephen (1829–94), judge in the Queen’s Bench Division and a renowned legal historian, attacked Mill’s ‘ignorance of the complexities of the human condition’ (see Liberty, Equality, Fraternity (1873)). The sanction of force is a necessary aspect of law and government. The absence of restraint for which Mill argues will weaken the bonds of social cohesion and lead to the subversion of social morality. Morality, it has been said, ‘is instantiated through the coercive opinions of society’; this is the reality which Mill seems not to understand. Criticisms of this nature have continued to surface in our own day. A Justice of the Supreme Court of the United States has condemned Mill’s ‘extremist libertarian errors of thought’ as having contributed to the licence which threatens ‘to replace liberty under the law in American society’. An English jurist has suggested recently that those who write in favour of a loosening of social discipline are often repeating ‘the confusion and false logic of Mill’s arguments relating to liberty of action’. A number of critics have complained of the unreal nature of Mill’s attempt to distinguish those actions for which the individual ought not to be accountable to society from those actions which are prejudicial to the interests of others and for which the individual ought to be accountable. ‘Self-regarding conduct’ (that is, purely personal conduct) is described by Mill as that which ‘neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself’. The strongest of all the arguments against the interference of the public with purely personal conduct is that, when it does interfere, the odds are that it interferes wrongly and in the wrong place. It should be remembered, argues Mill, that, in respect to his/her own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else. (It is of interest to note that Allen refers to Mill’s arguments in this area as ‘a compelling libertarian effort to delineate a defensible zone of personal privacy’: see ‘Constitutional law and privacy’, in Patterson (ed), A Companion to Philosophy of Law and Legal Theory (Blackwell, 1999).) Rees’ essay on The Principle of Liberty (1960) (reprinted in Ryan (op cit)) sets out some of the objections to Mill’s view of man as ‘in certain categories social, but in others wholly individual’. MacIver (see Modern State (1926)) is cited as arguing that, in every aspect, man is a social being at the same time that he is also autonomous. Rees suggests that the greater part of English history since Mill’s day ‘has been a practical commentary on the fallacy of the distinction’. No action, however personal and intimate it might be, is free from social consequences. ‘No human being can say that what he is, still less what he does, affects no one but himself.’ It is the essence of this argument which forms the basis of many of Lord Devlin’s objections to ‘the unreal assumptions’ of the Wolfenden Report.
On Liberty: ‘a recipe for total laisser faire’
communal matters. Consider his argument relating to marriage and child-bearing: To undertake this responsibility – to bestow a life which may be either a curse or a blessing – unless the being on whom it is to be bestowed will have at least the ordinary chances of a desirable existence, is a crime against that being. Laws forbidding marriage unless the parties can show that they have the means of supporting a family ‘do not exceed the legitimate powers of
the State ... they are not objectionable as violations of liberty’. Laws of this nature, says Mill, ‘are interferences of the State to prohibit a mischievous act’. Here, indeed, is interventionism of a kind which is a negation of ‘total laisser faire’ in society’s activities. In relation to education Mill favours intensive government intervention. It is ‘almost a self-evident axiom that the State should require and compel the education, up to a certain standard, of every human being who is born its citizen’. Parents have a duty to ensure that their children receive an education, and it is a government responsibility to enact appropriate laws rendering education compulsory. Public examinations, beginning at an early age, should ascertain a child’s ability to read. Where the child fails in an examination of this nature, ‘the father, unless he has some sufficient ground of excuse, might be subjected to a moderate fine, to be worked out, if necessary, by his labour, and the child might be put to school at his expense’. This is certainly not a recipe for a society built upon ideals of total laisser faire.
‘One very simple principle’ The underlying ‘simple principle’ of On Liberty, which is set out in the headnote above, is viewed by many jurists as an important contribution to jurisprudential theory, a body of knowledge which for Mill has significance only in ‘its importance, to man and society, of giving full freedom to human nature to expand itself in innumerable and conflicting directions’. Liberty of action, freedom of conscience and expression are desirable ends in themselves because of their essential role in man’s advance. Indeed, advances in human knowledge require free argument: in William Blake’s words, ‘Without contraries is no progression’. Mill’s message concerning liberty under the law has been perceived by some legal historians as a re-working of the views of earlier philosophers such as Spinoza (1632–77), who had been excommunicated by the elders of his religious community on the ground of unorthodox thought concerning the nature of God. (See Spinoza’s Political and Ethical Philosophy by Duff (Kelley, 1970).) Man cannot be made to speak by the book. On the contrary, the more the attempt is made to take away freedom of speech from men, the more stubbornly do they resist it ... For men in general have been so constituted that there is nothing they will endure with so little patience as that views which they believe to be true should be counted as crimes against the law, or that what moves them to the service of God should be treated as wickedness.
The essence and implications of Spinoza’s expression of man’s need for freedom of speech reverberate
Some jurists and political scholars claim to perceive in Mill’s essay a downgrading of the functions of government to a point at which they cease to have any significance, so that they can be replaced by
throughout On Liberty, making it a significant statement concerning the relationship between the State and the individual, a topic which continues to exercise
institutions imbued with the philosophy of laisser faire. But Mill does not call for the abandonment of government responsibility for some
contemporary legal theory.
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Judge Posner on pragmatic jurisprudence by LB Curzon, Barrister and Lecturer in Law ‘Pragmatism in the sense that I find congenial means looking at problems concretely, experimentally, without illusions, with full awareness of the limitations of human reason ... the unattainability of “truth”, the consequent importance of keeping diverse paths of inquiry open ... and above all the insistence that social thought and action be evaluated as instruments to valued human goals rather than as ends in themselves.’ A revision of legal realism for examination purposes can be enriched by
of his age or nation.’ Jurists and lawyers are urged by Posner to
a consideration of some of its contemporary variants, including the
consider the merits of pragmatism, which advocates the principle that
‘pragmatic jurisprudence’ associated with Judge Robert Posner. His
‘truth is no more than that which “works” consistently in human
radical approach draws on the philosophy of pragmatism (Gr: pragma =
action’. The leading early exponents of pragmatism include Charles
deed) and his own experiences as a judge. A short outline of his
Peirce (1819–1914) and William James (1842–1910). Peirce states, in
distinctive perception of the tasks of jurisprudence is given below.
apodictic fashion: In order to ascertain the meaning of an intellectual
Background
conception, one should consider what practical consequences might conceivably result from the truth of
Posner (b 1939) was educated at Yale and Harvard, becoming Law Clerk to Justice Brennan of the Supreme Court. He worked for the federal
that conception; and the sum of these consequences will constitute the entire meaning of the conception.
government on anti-trust legislation and is currently Chief Judge of the US
In short, the ‘meaning’ of a proposition is its logical or physical
Court of Appeals for the Seventh Circuit, and a senior lecturer in law at
consequences. Hence, law is best perceived as a servant of human
Chicago University Law School. (He acted recently as federal mediator in
needs. Not the origins of law, but its goals, ought to be a principal
the anti-trust lawsuit brought by the US Government against Bill Gates’
concern of those engaged in the study and administration of law; their
Microsoft Corporation.) He seeks to advance the claims of pragmatism as
interest should be not in truths and eternal verities, but in ‘belief
a basis for jurisprudence, and is responsible for constructing the
justified by social need.’ In the field of contemporary law, says Posner,
foundations of the ‘Law and Economics’ movement (see below) which
‘there is too much emphasis on authority, certitude, rhetoric and
applies the methodology of some contemporary schools of economics to
tradition, and too little on consequences and on social-scientific
legal thought. Jurisprudence is viewed by Posner as ‘the most
techniques for measuring consequences’. Pragmatists must draw
fundamental general and theoretical plane of analysis of the social
attention repeatedly to the dismal fact that ‘the consequences of law
phenomenon called law’. Pragmatism, he asserts, will assist in an
are what are least well known about law’. Jurisprudence must turn
understanding of that phenomenon.
away from abstraction, from the search for fixed principles, closed systems and pretended absolutes and must turn instead towards
The literature
‘concreteness, adequacy, facts and action’.
There is no one text by Posner systematising pragmatic jurisprudence. He chooses to write a variety of essays illustrating applications of pragmatic thought. The Problems of Jurisprudence (1990, Harvard UP) and Overcoming Law (1995, Harvard UP) are collections of essays on legal problems of our day. Criticisms of Posner’s approach can be found in ‘The judicial universe of Judge Posner’ by P Bator ([1985] University of Chicago LR 1146) and ‘Posner’s pragmatism’ by E Rakowski ((1991) 104 Harvard LR 1981).
Pragmatism and law (1) Posner emphasises the absence from his work of any single canon of legal pragmatism: there are no commandments, no touchstones. An approach to the law which is practical and useful rather than essentialist, which is concerned primarily with what works and what is useful rather than with what ‘reality’ is, characterises the pragmatic approach and avoids the jejune search for rigid, immutable principles. This approach is, therefore, forward-looking; but it values those links
Some essential aspects of pragmatism The jurisprudence appropriate for our times must be built firmly on a bedrock of systematic philosophy: this is a basic tenet of Posner’s thought. He notes the significance of Bertrand Russell’s assertion: ‘The man who has no tincture of philosophy goes through life imprisoned in the prejudices derived from common sense and from the habitual beliefs
with the past which will assist in the solution of current problems. Thus, stare decisis – the basis of legal precedent – is to be ‘treated as a policy rather than a duty’. Dworkin’s plea (see Law’s Empire, 1986) that the past be allowed some special power of its own in the courts, is, therefore, unacceptable. The pragmatic judge will not ignore the past, but he will utilise his special knowledge and understanding of modern society so that the rules which he fashions will function well;
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J U R I S P R U D E N C E in Cardozo’s words, these rules ‘will produce a title deed to
judge must seek to know where his reasoning might lead. His decision,
recognition’.
and its underlying rules, must be considered in instrumental terms.
Pragmatism rejects ‘final truths’ as a goal for jurisprudential analysis. The law’s ‘certitudes’ may be little more than a mask for ‘the
Posner asks us to remember the view of Judge Benjamin Cardozo ([1997] SLRYB 147):
common sense of social concerns’. Pragmatists do not reject the place
Few rules in our time are so well established that they
of common sense in legal argument; but they warn that the frames of
may not be called upon on any day to justify their
reference which often define ‘common sense’ are changeable. Today’s
existence as means adapted to an end.
common sense is often tomorrow’s ‘outworn dogma’, to be scrapped as swiftly as possible. Pragmatism will raise its voice against the premature closure of debate on important jurisprudential matters: there must be continuous challenge to ‘received wisdom’ on concepts such as
The concept of law: ‘a pragmatic manifesto’
‘responsibility’, ‘intention’, ‘motivation’, ‘causation’, which loom large in discussions on the criminal law and the law of torts. It would be
In the concluding chapter of Problems of Jurisprudence, Posner
unwise, for example, to consider that the attitude to the principle of doli
summarises the pragmatist’s concept of law in eight short theses.
capax has been settled for all time, following the coming into force of s
•
First, there is no such thing as ‘legal reasoning’: lawyers and
34 of the Crime and Disorder Act 1998, or that discussion on the
judges employ simple logic and everyday practical reasoning.
concept of bias in a judge will be stilled, following the jurisprudential
The methodology associated with scientific endeavour is not at home in the courts of law.
discussions concerning the speeches in the House of Lords in Re Pinochet Ugarte (1999) 149 NLJ 88. Posner refers to the continuing and
•
Secondly, because of the absence of real feedback in the legal
intense discussions in the United States on the abortion laws almost a
process, it is almost always impossible to know the true
quarter of a century after Roe v Wade, 410 US 113 (1973).
consequences of a legal decision. Hence, to demonstrate the
The pragmatist will urge the importance of the spirit of anti-
correctness of such a decision (which would be essential for a
dogmatism in discussions relating to the basis of law. He will welcome
true scientific verification of the value of the work of the courts) is generally impossible.
the vast powers of formal scientific analysis and will seek to nudge lawyers into a closer acquaintance with scientific method, but he will
•
Thirdly, difficult legal cases can rarely be decided objectively if
keep in mind the limitations of that method and will remain alive to the
‘objectivity’ is taken to mean more than mere reasonableness.
problems which can result from the uncritical importation of scientific
The judiciary can call only upon shared intuitions as a basis for objective decision making.
analysis into jurisprudential scholarship. Similarly, he will acknowledge the powerful tool of formal logic while remaining wary of its
•
Fourthly – and vital to the pragmatist’s case – significant
indiscriminate adoption in jurisprudential discourse. Theories of great
changes in the law often result from non-rational processes:
beauty deriving from the precepts of Aristotelian logic may have little
indeed, rhetoric may change the law as much as hard reality
relevance for the untidiness of contemporary legal theorising. And
does. (Note, for example, the events leading to the swift
where theories collide, the pragmatic lawyer will ask: ‘What practical,
enforcement of the Dangerous Dogs Act 1991, or the public furore leading to the Protection of Children Act 1978.)
palpable, observable difference will a resolution of this conflict make to us?’ Nevertheless, pragmatic jurisprudence will point to the dangers of
•
concept, and no bounds can be fixed, in general, on what
rejecting theory without a full examination, and putting aside empirical
should be classified as ‘an argument’ in law.
studies of legal problems. Always, goals and objectives must be at the forefront of the work of jurists.
Fifthly, law is to be comprehended as an activity rather than a
•
Sixthly, the interpretation of statute is no longer a purely logical process: a vital aspect of statutory interpretation involves a
Pragmatism and law (2)
consideration of the consequences of alternative decisions. •
Seventhly, there exists no ‘overarching concept of justice’ that
•
Finally, the law is functional and has sought to utilise in
Posner draws attention to some inadequacies in contemporary jurisprudential argument arising from two extreme styles of reasoning, and known as ‘topside-down reasoning’ and ‘bottom-up reasoning’. In ‘topside-down reasoning’, judges and jurists invent or adopt a theory
can give direction to legal enterprise. increasing measure a behaviourist concept of human activity ‘as sufficient to its ends and tractable to its means’.
about an area of law, and use it so as to distinguish or amplify decided
Posner states that he finds pragmatism in relation to law ‘bracing’
cases in order that they shall conform to the key theory so as to
although he is aware that others may find it ‘paralysing’. In particular,
‘generate an outcome in each new case as it arises that will be
he draws attention to the need for legal pragmatists to be ‘particularly
consistent with the theory and cases accepted as authoritative within
wary’ of persons who claim to have discovered ‘the truth’ and who
the theory’. ‘Bottom-up reasoning’ (often involving the use of analogy or
argue fervently that a continuation of inquiry in some areas is futile at
‘plain- meaning interpretation’) is exemplified by scholars and judges
best, subversive at worst. Jurisprudence must accept a fallibilist theory
using the text of a statute to construct ‘a handful of indispensable
of knowledge and must welcome ‘a commitment to robust and free-
principles of law’ which are then utilised to deduce ‘the correct
wheeling inquiry with no intellectual quarter asked or given’.
outcome’ of cases heard by the courts. This often produces the inflexible formalism which Posner views as harmful to legal development. The pragmatist will argue against exclusive reliance on either
A note on the ‘Law and Economics’ movement
type of reasoning. The courts must have in mind at all times a pragmatic view of the welfare of society as ‘the final cause of law’. A
Writing in 1897 in the Harvard Law Review, Holmes suggested that ‘the man of the future is the man of statistics and the master of
164 • STUDENT LAW REVIEW • 2000 YEARBOOK
J U R I S P R U D E N C E economics’. A century later, the ‘Law and Economics’ (‘L&E’)
relevant empirical studies and theories which acknowledge this
movement, fathered by Posner, has become an important strand of
phenomenon. In this way, a jurisprudence for our time and society will
American jurisprudence. Drawing on the work of the English
emerge.
economist, Coase (b 1910), Posner seeks to promote an ‘economic jurisprudence’ which, in considering the well-springs of social activity, will provide an appropriate methodology for contemporary legal
Criticisms of Posner
scholars. We set out below a very brief account of the basis of the L&E
As might be expected, and given the tradition of jurisprudence in the
movement.
common law jurisdictions, the radical aspects of Posner’s pragmatism
L&E literature is vast and invariably demanding. Students with a
have brought about a strong reaction, which has centred, first, on the
knowledge of contemporary economic theory will find Posner’s
general features of pragmatism, and, secondly, on the specific
Economic Analysis of Law (4th edn, 1992, Harvard UP) of considerable
formulations of the L&E movement. Pragmatism as a philosophy has
interest. Those with no background in economics could turn to Law
been subjected to intensive criticism since the days of Peirce and James.
and Economics by R Cooter and T Uden (1999, Addison Wesley).
Bertrand Russell described it as ‘the lazy thinker’s philosophy’, in which
Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell) contains a
the rigours of thought are cast aside in favour of an eclectic approach.
classic exchange of views on L&E between Posner and Dworkin. An
The philosopher, FH Bradley, argued that pragmatists subordinated
overview of Posner’s work in L&E is given in N Duxbury’s Patterns of
cognition to practice; GE Moore pointed out that pragmatists confused
American Jurisprudence (1995, OUP).
‘true’ beliefs with ‘useful’ beliefs, and, in any case, canons of utility tend
Posner interprets basic social activity in terms of the view of
to change over time. Some Marxist critics observed that a belief can be
some economists that ‘people are rational maximisers of their
useful, and yet false. Lawyers asked pointedly, how, if goals were all,
satisfactions’. Promotion of rational self-interest necessitates a free
one ‘evaluated’ the effect of legislation. At what point in time, and with
market system, under which society’s resources may move towards
what analytical tools, do we decide, for example, whether the ‘goals’ of
their optimum utilisation. ‘When resources are being used where their
the Theft Act 1968 have been achieved? And how do we measure
value is greatest, we say that they are being employed efficiently.’ The
‘attainment of the objectives’ of, say, the welfare legislation of the past
concept of ‘efficiency’ is central to L&E thought. (It reflects the
two decades?
significance of ‘ends and goals’ in the philosophy of pragmatism.)
The L&E movement has caused considerable controversy
Wealth-maximisation and efficiency are inextricably linked.
among jurists in the United States. The Critical Legal Studies movement
Both require those legal rights which facilitate the workings of free
has denounced L&E as ‘the legal arm’ of the political free-market
choice; hence the clear need for a system of contracts and for laws
movement, and debates with Posner have centred on the possible
designed to protect property, Posner suggests that an examination of
effects on welfare legislation and labour rights of a jurisprudence which
legal history indicates the probability of judicial activity and legal rules
seeks to elevate economic activity to a position of primary significance
having been directed throughout the centuries at the creation and
within society. Many lawyers, jurists and economists have cast doubt
maintenance of ‘efficiency within society’:
on Posner’s claim that the wealth-maximisation principle ‘goes beyond’
Many areas of the law, especially – but by no means only
Bentham’s largely-discredited utilitarianism. Others maintain that it is
– the great common law fields of property, torts, crimes
unclear why an increase in social wealth is a worthy goal of paramount
and contracts, bear the stamp of economic reasoning.
significance; they contend that a society’s wealth is merely one
Perfect markets (a prerequisite of wealth-maximisation, according to
component of social value among many others. Some legal historians
Posner) rarely exist, and it is in these circumstances that the courts have
question Posner’s interpretation of the growth of the common law as
a specific duty to perform if wealth is to be maximised. Where markets
indicating a concern of the ruling class and its judicial officers with
are unable to operate perfectly (for example, where monopoly forces
economic efficiency. Historical investigation, it is asserted, has failed to
are strong) so that society’s efficiency is below its optimum level, the
provide support for Posner’s interpretation; rather, does such
courts must intervene. Judicial activity in these circumstances will, in
investigation suggest that feudal society, for example, in which the
true pragmatic fashion, have a clear goal in view – the maintenance of
common law developed, was concerned, through its rudimentary rules
efficiency. The courts will, therefore, ‘mimic the market’ by allocating
and regulations, with power structures and their maintenance, and
rights and liabilities in an attempt to generate the results that might be
rarely with economic efficiency.
generated by a free market working efficiently. In practice, therefore,
Posner has not been slow to reply. To those who express alarm
judges would be guided by a pragmatic view of their functions and
at the implications of his wealth-maximisation principle, he offers the
duties, and a primary duty might take the form of the imposition of
thought that application of the principle enables ‘a reconciliation
sanctions against those who have introduced unwanted friction into the
among utility, liberty and even equality as competing ethical
apparatus of free exchange of goods and services. Monopolies among
principles’. To those who condemn his pragmatic jurisprudence as too
those who buy and sell labour power, the concentration of capital
grand an objective, he answers thus:
resources in relatively few hands, are likely to be viewed in negative
All that a pragmatic jurisprudence really connotes ... is a
terms by legislators and judges, concerned with the efficiency which is
rejection of the idea that law is something grounded in
said to result from the drive to the free market and wealth-
permanent principles and realised in logical manipulation
maximisation.
of those principles, and a determination to use law as an
Jurisprudence, argues Posner, must investigate the overall
instrument for social ends ... This jurisprudence signals an
significance of market forces and wealth maximisation, and draw
attitude, an orientation, at times a change in direction.
appropriate conclusions. If, indeed, economic activity plays a key role
That is something, and maybe a lot.
in society’s aspirations, plans and activities, this must be mirrored in
165 • STUDENT LAW REVIEW • 2000 YEARBOOK
J U R I S P R U D E N C E
Dean Pound’s theory of interests by LB Curzon, Barrister and Lecturer in Law ‘We must reinvestigate the theories of justice, of law, and of rights We must seek the basis of doctrines, not in Blackstone’s wisdom of our ancestors ... but in a scientific apprehension of the relations of law to society and of the needs and interests and opinions of society of today.’ Sociology, which seeks to investigate ‘the causes and effects that arise
Interests: ‘The scope and purpose of sociological jurisprudence’ ((1911)
in social relations within communities’, burgeoned at the beginning of
Harvard LR 24); Interpretations of Legal History (1923, CUP); Social
the 20th century and attracted the attention of several leading jurists,
Control Through Law (1924, Yale UP); ‘The future of law’ ((1937) Yale
including Jhering, Ehrlich and Pound. They shared a view of law as, in
LJ 47); My Philosophy of Law (1941, West); ‘A survey of social interests’
essence, a social phenomenon, functioning as an integrated system,
((1943) Harvard LR 27). Summaries of, and comments on, Pound’s
and reflecting society’s principles and aspirations. The contribution of
jurisprudence appear in Dias’ Jurisprudence, 1985, Butterworths);
Roscoe Pound (1870–1964) – his sobriquet derives from his fame as
Pollack’s Jurisprudence (1979, Ohio UP); Duxbury’s Patterns of
Dean of Harvard Law School – rests on the Theory of Interests and a
American Jurisprudence (1995, Clarendon). Pound’s life and works are
vision of law as a necessary instrument for the reconciliation and
discussed in: Roscoe Pound: Philosopher of Law, by D Wigdor (1974,
harmonisation of conflicting and overlapping interests within society.
Greenwood); Roscoe Pound and Karl Llewellyn, by N Hull (1997,
The context and framework of ‘a sociological jurisprudence of interests’
Chicago UP).
are sketched below.
Background Pound was educated first as a botanist: his doctorate was in plant
The agenda for sociological jurisprudence
ecology, to which he made a distinguished contribution. (There can be
The function of law is, according to Pound, to assist in the adjustment
few jurists who have a rare fungus named after them!) His studies on
of relations and the ordering of conduct:
the taxonomies of plants are of relevance to the methodology of his
... in a world in which the goods of existence, the scope
jurisprudential investigations, which abound with systematic lists and
for free activity, and the objects on which to exert free
classifications. (Some find his style of writing a model of clarity; others,
activity are limited, and the demands upon those goods
such as Justice Holmes, refer to it as ‘overticketed and overdocketed’,
and those objects are infinite.
so that basic principle often disappears in clouds of detail.) He moved
The enunciation of an efficient code of law necessitates a correct
to Harvard, where he studied law, prior to practising at the Nebraska
understanding of the workings of society. Sociological Jurisprudence
Bar. He served as Commissioner for Appeals for the Nebraska Court,
must seek recognition for six essential approaches to study. First, there
taught law at the University of Chicago and at Harvard, where, in 1914,
must be a deep analysis of the actual long-term social effects of our
he became Dean of the Law School. Following retirement in 1947, he
legal doctrines and institutions. Secondly, jurists must study the
acted as consultant on law to the Chinese Nationalist leader, Chiang
immediate social operation of legislation and its effects in action.
Kai-Shek, and worked on the outlines of a revised criminal law for
Thirdly, they must examine the means of making legal rules effective:
China, which, he promised, would be based on a structure similar to
‘... the life of the law is in its enforcement.’ Fourthly, a scientific study
that used in Justinian’s systematised Institutes.
must be made of those aspects of our legal history which are concerned
For Pound, the key questions in sociological jurisprudence are:
with the growth of doctrines and institutions of the past. Fifthly,
‘Why do men seek to enforce rights, if it is not for the interests behind
appropriate attention must be given to the equitable applications of the
them?’, and, ‘Where should the line be drawn between the reasonable
law and their links with the demands of justice. Finally, jurisprudence
and the arbitrary exercise of power if not at the point where the greatest
must keep in mind, at all times, its end, namely, ‘to make effort more
number of interests are secured with the least possible sacrifice of other
effective in achieving the purposes of law’.
interests?’
The literature
Specifically, sociological jurists will be seen as possessing the following characteristics: they look more to the working of the law than to its abstract content; they hold it their duty to discover methods of
From Pound’s numerous writings, which culminated in the
improving law as a social institution; they stress ‘the social purposes
monumental Jurisprudence (published in his 89th year), the following
which law subserves rather than its sanctions’; they see legal precepts
provide essential material for an understanding of the Theory of
as guides to socially just results rather than as inflexible moulds; they show interest in the pragmatist philosophy of law.
166 • STUDENT LAW REVIEW • 2000 YEARBOOK
J U R I S P R U D E N C E
Law as ‘social engineering’
and, with this task in mind, Pound appears to have drawn upon the structure of classification adopted by the father of modern botany,
Given Pound’s concern with the instrumental aspects of law, it is not
Linnaeus. ‘Orders’ are distinguished, divided into ‘classes’, each of
surprising to learn that he adopted a striking metaphor to illustrate the
which is further divided into ‘sub-classes’ or ‘divisions’. Three classes
nature of the ‘tasks’ of lawyers, legislators and jurists. Jurisprudence as
emerge within Pound’s taxonomy: individual, public, and social
‘a science of social engineering’ featured large in his analysis of the
interests.
purpose of legal theory and practice. Sociological Jurisprudence has to
Individual interests are ‘demands or desires involved in or
concern itself with that which might be achieved ‘by the ordering of
regarded from the standpoint of the individual life.’ This class is divided
human relations through the action of politically organised society’.
into three sub-classes: interests of personality, of domestic relations, and
I am content to see in legal history the record of a
of substance. The first involves interests pertaining to a person’s
continually wider recognising and satisfying of human
physical and spiritual existence (for example, his physical security, his
wants or claims or desires through social control ... a
opinions and beliefs); the second relates to his interests as a child, or
continually more complex and effective elimination of
parent, and takes in the protection of the institution of marriage; the
waste and precluding of friction in human enjoyment of
third involves interests in property, succession, testamentary disposition,
the goods of existence – in short, a continually more
freedom of contract and association.
efficacious social engineering.
Academic and practising lawyers, legislators, must be judged, therefore, by what they do, just as the engineer’s work is judged by ‘its adequacy to the purpose for which it is done, by its conformity to some ideal form of a traditional plan’. Jurists would find guides to thought and action in certain forms of established jurisprudential theory and legal practice: •
Rules. These are to be considered as ‘precepts attaching a definite, detailed legal consequence to a definite, detailed statement of facts’.
•
Principles. These are ‘authoritative starting points for legal reasoning employed where cases are not covered by rules in the narrower sense’.
•
Conceptions. ‘Authoritative categories to which cases or situations are referred, in consequence of which a series of rules, principles and standards become applicable.’
•
Standards. ‘The general limits of permissible conduct to be applied according to the circumstances of each case.’
The nature of ‘interests’ Pound uses the term ‘interest’ to refer to: ... a demand or desire which human beings either individually or in groups seek to satisfy, of which, therefore, the ordering of human relations in civilised society must take account.
He stresses that the law creates no interests; it classifies them, recognises a larger or smaller number, defines the general extent to which it will give effect to those to which it affords recognition, and devises means ‘for securing them when recognised and within the determined limits’. Jurisprudence has the responsibility of providing an acceptable theoretical basis for the taking of an inventory of those interests ‘which press for recognition’; the generalisation and classification of those interests; the selection and determination of interests worthy of recognition; the fixing of limits of securing recognised interests; the working out of principles to apply in the valuation of interests.
A taxonomy of interests (1)
A taxonomy of interests (2) Public interests are divided by Pound into two sub-classes: first, interests of the state considered as a juristic person; the second is based upon the concept of the interests of the state as a guardian of social interests, that is, ‘those demands or desires involved in or looked at from the standpoint of life in a politically-organised society, asserted in title of political life’. In the first sub-class will be included those interests related to the general integrity and freedom of action of the personality of the state (where it is necessary to ‘personify’ the state); the second sub-class will comprise interests emerging from the duty of the state to maintain the general social interests of its people and to construct and operate the social mechanisms necessary for its guardianship to be effective. This sub-class of interests overlaps to an extent with the class of social interests which is considered next.
A taxonomy of interests (3) Social interests are of key significance in the taxonomy. Pound refers to them as ‘those wider demands or desires involved in or looked at from the standpoint of social life in civilised society and asserted in title of social life’. The class is sub-divided into six sub-classes, each referring to a social interest in: the general security; the security of social institutions; general morals; the conservation of social resources; general progress; individual life. Social interest in the general security refers to claims asserted through the social group ‘to be secure against those forms of action and courses of conduct which threaten its existence’. Safety, health, security of individual transactions and acquisitions come under this heading. Social interest in the security of social institutions reflects the desire that fundamental institutions be secured against ‘actions and forms of conduct which threaten their existence or impair their efficiency’. Domestic institutions, religious institutions, political and economic institutions come within this category. Social interest in general morals reflects ‘the claim or want or demand involved in social life in civilised society to be secured against acts or courses of conduct offensive to the moral sentiments of the general body of individuals therein for the time being’. Pound had in
Pound’s Theory of Interests may be stated in very broad terms as based
mind legislation dealing with ‘social afflictions’ such as drunkenness
on the hypothesis that social stability depends upon an appropriate
and gambling. Social interest in the conservation of social resources
balancing of often-conflicting interests, and, to that end, the law must
arises where persons are determined ‘that the goods of existence shall
assist in the collation, analysis, classification and evaluation of interests,
not be wasted ... and that the acts or courses of conduct which tend
leading to their modification, where necessary, and acceptance as a
needlessly to impair these goods shall be restrained’. Pound sees ‘social
part of society’s fabric. Classification of interests is of key significance
resources’ as including human beings, so that the protection and
167 • STUDENT LAW REVIEW • 2000 YEARBOOK
J U R I S P R U D E N C E education of individuals, the care and reformation of delinquents,
intentional aggression upon them; that they will be permitted to control
protection of the economically dependent, are constituents of this
for beneficial purposes what they have discovered, created or acquired;
group of interests.
that promises will be carried out on the basis of good faith, and that
Social interest in general progress arises from a claim or
unjust enrichment will be prevented so far as that is possible; that
demand that the development of human powers and of human control
individuals who engage in particular courses of conduct will act with
over nature for the satisfaction of human wants shall go forward. This
appropriate care so as to avoid the creation of unreasonable risks of
develops into a demand ‘that social engineering be increasingly and
injury to others. (In his later writings, Pound added two further
continually improved; as it were, the self-assertion of the social group
postulates: that citizens should be entitled to assume that the general
towards higher and more complete development of human powers’.
burdens incidental to social life shall be borne by society; that, as a
Three types of progress become essential: economic progress
minimum matter, every citizen should be assured of the material basis
(involving, for example, freedom of trade, industry); political progress
of ‘a standard human life’.)
(involving freedom of criticism and the unfettered expression of opinion); cultural progress (necessitating free science and literature, encouragement of arts and higher education). Social interest in individual life is the claim involved in social life ‘that each individual be able to live a human life therein according to the standards of society’. Pound suggests that three forms of this particular social interest have been recognised in the common law or legislation: individual selfassertion, individual opportunity, and individual conditions of life.
Pound criticised Pound faced, but did not always counter, criticisms of his theory and the supporting taxonomy of interests. He was asked repeatedly for scientific data concerning the investigations which produced the concept of interests and which resulted in the taxonomy. He was said to have done little to advance our understanding of the nature of law, to have merely ‘rationalised the actual’, and to have shown too much concern for ‘making things work better’. Insufficient attention seemed to
The balancing of interests, and the recognition of claims to ‘new interests’
have been given to the clarification and enunciation of those ‘values’ underpinning his jural postulates, so that the taxonomy is little more than a list of personal predilections, lacking objectivity.
The balancing of interests and the maintenance of the resulting social
In our time, criticism has continued. A recent publication of the
equilibrium are vital aspects of the process of ‘social engineering’
American Critical Legal Studies movement denounced Pound’s theory
which Pound sees as the central function of law. Balancing must result
as ‘at best a series of grandiose generalisations ... at worst, a disguised
in an elimination of social frictions, so far as that is possible, and an
political manifesto confusing eternal verities and the very specific
elimination of waste in the resources available to society. Interests must
conditions of America in the late 1920s ...’. Attention has been drawn
be balanced ‘fairly’, and this necessitates the examination and weighing
to the considerable overlap in the taxonomy of ‘public’ and ‘social’
of interests ‘on appropriate planes’. Hence, the jurist must seek to draw
interests; to some critics this indicates more than a mere semantic
attention to the nature and place of a claim within the overall
confusion and points to a lack of acuity in Pound’s perception of
taxonomy. Individual claims must not be confused with demands
society’s modes of operation.
relating to social interests; like must be balanced against like.
Criticisms continue to be directed to the difficulties arising from
[Readers might care to apply the essence of Pound’s ‘balancing
Pound’s ‘social engineering’ analogy. It has been noted that engineering
of interests’ to the following contemporary matters: the public debate
involves construction according to the precise requirements of a plan,
on the proposed repeal of the Local Government Act 1988, s 28; the
and that the planning of social affairs is not universally acceptable in
arguments which led to the Public Interest Disclosure Act 1998; the
liberal societies in which there are memories of those totalitarian
controversy surrounding calls for changes in the availability of jury trial;
regimes where law, jurisprudence, education and culture were seen as
the decision of the Court of Appeal in Powell v Chief Constable of
contributors to ‘the engineering of the ordered society’. Further, terms
North Wales (2000) The Times, 11 February.]
such as ‘balancing’, ‘weighing’, adjusting’, which Pound uses in his
Developments in society and changes in social values give rise,
explanation of the harmonisation of interests suggest scales, yardsticks
inevitably, to claims based on ‘new interests’. In our day, for example,
and fixed points of reference which are absent from his exposition of
advances in information technology are leading to calls for a rethinking
the functions of law in relation to interests.
of the basis of laws concerning freedom of information, personal
For some critics, however, Pound’s work continues to be of
privacy, and defamation. Pound suggested that claims for new interests
relevance. Dias (op cit) notes that, more than anyone else, Pound assists
ought to be recognised only where those interests would satisfy certain
in our understanding of the important relationships ‘between laws, their
basic values which he encapsulated in a list of essential ‘jural
administration and the life of society’. Friedmann (see Legal Theory,
postulates’. In brief, a novel claim must be tested against those
1967, Stevens) reminds us of Pound’s success in ‘making inarticulate
assumptions which members of a civilised society hold to be
premises articulate’ and emphasising the need for legislators and judges
fundamental and immutable.
to keep in mind society’s values and aspirations – key objectives in the
These fundamental assumptions are: that others will commit no
168 • STUDENT LAW REVIEW • 2000 YEARBOOK
enunciation of the Theory of Interests.
L A N D
L AW
Case notes Uratempt Ventures Ltd v Collins; Jal Mehta v Royal Bank of Scotland; Carroll v Manek ..................................................................................................170 Yaxley v Gotts ..........................................................................................................170 Chaffe v Kingsley......................................................................................................171 Birmingham Midshires Mortgage Services v Sabherwal (Sudesh)............................172 Barclays Bank v Coleman ........................................................................................172 The Mortgage Corporation v Shaire and Others ......................................................173 Pye Ltd v Graham ....................................................................................................174 Gillett v Holt; Evans v James; Flowermix v Site Development (Ferndown) Ltd ......174
169 • STUDENT LAW REVIEW • 2000 YEARBOOK
L A N D
L AW
Case notes
after employment had ceased. Jal Mehta and Uratempt are, by contrast,
by Martin Dixon, Lecturer and Fellow in Law, Robinson College, Cambridge
of a licence given that it is the substance of the agreement that is
Leases, licences and hotel rooms
more difficult. There was much to suggest that the occupier in Jal Mehta was indeed a tenant and it is difficult to see why the intention of the defendant (not to defeat the Rent Acts) should sway the court in favour supposed to be critical (see Street and Bruton v London and Quadrant Housing Trust). If the substance of the agreement indicated a tenancy, then the honest intention to create a licence should not mean a licence exists. Likewise for Uratempt, earlier cases such as Antoniades v Villiers suggest that post-agreement practice can indicate whether the reality of the agreement accords with the written terms. Lack of conformity between practice (which otherwise indicate a tenancy) and the written
Uratempt Ventures Ltd v Collins, 2 December 1999, CA; Jal Mehta v Royal Bank of Scotland (1999) The Times, 25 Janaury, HC; Carroll v Manek (1999) The Times, 18 August, HC
terms (which indicate a licence) might suggest a ‘pretence’ allowing the court to look beyond the formal agreement. Perhaps the court in Uratempt is taking the view that if the occupier refuses services which are genuinely offered and available, then the occupier cannot later
Facts
plead that lack of real services indicates a tenancy. This, at least, is a
In Uratempt, the claimant (plaintiff) sought possession of hotel rooms, of
the courts are unhappy with tenancy claims in the context of hotel
which the long term occupiers claimed to be tenants. The agreements
accommodation and that very special circumstances will need to exist
provided that the occupiers were entitled to hotel services and that
before such can give rise to a tenancy.
defensible position. However, what all three cases do indicate is that
cooking in rooms was prohibited. This would tend to suggest a licence. However, the occupiers claimed that they had never availed themselves of the services and that, in fact, they did cook in their
Estoppel, constructive trust and certainty
rooms. This would indicate a tenancy. In Jal Mehta, the claimant was a long term occupier of a hotel
Yaxley v Gotts [199] 3 WLR 1217, CA
room (in a house), with some services provided. However, it was known to all parties that the claimant wanted long term occupation. In Carroll, the claimant alleged a tenancy of hotel rooms where he had been manager on behalf of the defendant.
Facts The claimant was a builder, and the defendant the registered proprietor of a house. The claimant and the defendant’s father had orally agreed
Held
that the claimant was to have the ground floor of the house in return for
(1)
In Uratempt, the occupiers were contractual licensees, as it was
the defendant, but it was found, as a fact, that the defendant had
the nature of the original agreement that was important. The fact
adopted the bargain agreed by his father. The parties fell out. The
that the occupiers did not act in accordance with the terms of
claimant claimed an interest in the house under proprietary estoppel.
that agreement did not alter the essential nature of the
The oral contract between them was unenforceable under s 2(1) of the
agreement as a licence. (In respect of one occupier, the case
LPA 1989.
refurbishing the entire premises. In fact, the house was purchased by
was remitted on the plea that the parties had changed the terms
(2)
of the agreement.)
Held
In Jal Mehta, the occupier was a contractual licensee, because,
(1)
of the LPA 1989 by virtue of s 2(5).
Mountford conditions, there was here no attempt to evade the Rent Acts and so no reason to disturb the essential nature of the agreement
The claimant had established an interest under a constructive trust, which was exempt from the need for writing under s 2(1)
although the occupation came close to fulfilling the Street v (2)
It was possible to use proprietary estoppel to enforce an otherwise unenforceable contract (that is, because it lacked writing). All would depend on the circumstances of the case.
(3)
In Carroll, the occupier was a licensee, being a service occupier and so within one of the exceptions to the Street v Mountford criteria (see Norris v Checksfield).
Comment This is an important decision. First, the Court of Appeal confirms what
Comment
was believed to be the case concerning proprietary estoppel and the
The decision in Carroll is unexceptional, as occupation (even exclusive)
necessary to support an estoppel can be found in the unenforceable
does not give rise to a tenancy if it exists for the better performance of
written agreement between the parties. However, the sting is that this
the occupier’s duties as an employee. The claimant had been the hotel
can occur – and thereby defeat the policy of s 2 of the LPA 1989 – only
manager and so clearly fell within this category. The court might have
in appropriate cases. Unfortunately, the court offers little guidance as to
thought twice about whether the claimant’s occupation had been
what these are, save only that s 2 (the need for writing) can be side
converted to a tenancy once he had ceased to be the hotel manager,
stepped if its enforcement would not further the policy of the Act.
but this is unlikely to be true unless the party seeking possession had
Secondly, the Court appears to suggest that the principles of proprietary
delayed, thereby impliedly confirming the grant of a new estate (a lease)
estoppel and Lloyds Bank v Rosset-type constructive trusts are identical.
170 • STUDENT LAW REVIEW • 2000 YEARBOOK
need for writing under s 2 of the LPA 1989: viz that the representation
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So, the same facts that led the judge at first instance to decide the case
claim can be cast as a valid easement (for example, to provide
on the basis of estoppel can allow the Court of Appeal to find a
an accessible stairway or lift), then the landlord will have a
common intention, relied on to detriment, to justify a finding of constructive trust under Rosset. Of course, the Court of Appeal may be
repairing obligation in all but name. (2)
Severance. In Barry White v Brian White, 10 October 1999,
right, providing that we do not infer that such a correlation will exist in
Chancery Division, an equitable joint-tenancy had, apparently,
all cases. Thirdly, it is convenient that the defendant (the son) was held
been severed by the service of written notice under s 36(2) of
to have adopted the agreement between his father and the plaintiff: that
the LPA. However, the property had originally been purchased
is, it was as if the son was one of the original parties. Had he not done
by the joint-tenants with money provided by the claimant
so, the court would have been faced with the interesting question of
alone, on the basis that the claimant would receive the entire
whether (and how), a third party (the son) was bound in registered land
beneficial interest on the death of the other joint-tenants. The
by the estoppel/constructive trust generated by another person (the
court held that, in such circumstances, the severance should be
father), when the father never owned the land in question.
reversed so as to give effect to the original intention of the parties. This is a significant decision in that it appears to establish that some equitable joint-tenancies are effectively
Easements and implied reservation
unseverable: that is, where the severed party can establish an entitlement to the whole by way of resulting or constructive
Chaffe v Kingsley (1999) The Times, 12 December, CA
trust. (3)
Facts
Lease: forfeiture. In Inntrepreneur Pub Co v Langton, 22 October 1999, Chancery Division, the tenant made an application for relief from forfeiture following non-payment of
The defendant claimed (as a counterclaim) an easement to enter on the
rent. The tenant could not pay the arrears, but claimed that, if
claimant’s land for the purpose of constructing a road. The relevant
successful in a related action against the landlord-brewery, she
conveyances did not contain the express creation of an easement, so
would be able to assign the lease for a sum sufficient to pay off
the defendant had to rely on the law of implied reservation.
the arrears. The court held that the inherent jurisdiction to grant
Consequently, Wheeldon v Burrows was inapplicable (it is applicable
relief under Howard v Fanshaw (1895) 2 Ch 581 was to be
only to implied grant). There was no case for necessity, so the
exercised on the basis of principle and precedent and not
defendant had to rely on implied reservation by way of common
simply in a manner that the court thought fair on the particular
intention.
facts. So, although the court could grant relief where there was no proposal to pay rent within the immediately foreseeable
Held
future, it would not do so where the basis for the tenant’s claim
No easement had been impliedly reserved by way of common
was purely that she might win a related claim against the
intention.
landlord. To a large extent, the case turns on its own facts and no doubt the court would have been more sympathetic had the
Comment
tenant been able to produce evidence of how she might pay the
It had been held in Peckham v Ellison ((1999) 26 SLR 55; [1999] SLRYB
the court confirms that the new rules of procedure following the
166) that implied reservation of an easement by way of common
Woolf reforms have not altered the basis on which the court
rent if her related claim against the landlord failed. Importantly,
intention was possible as a matter of law. However, the Court of Appeal now makes it apparent that clear evidence of the required common
might exercise its discretion. (4)
Lease: forfeiture. In Croydon (Unique) Ltd v Wright [1999] 4 All
intention is necessary before such a reservation can be made. This must
ER 257, CA, the court held that a person with a charging order
be right and is a timely reminder that Peckham does not herald a new
over leasehold property (that is, a creditor who had obtained the
dawn in the law of easements. Further, the court also notes that where a
order to ensure payment of an outstanding debt, even if the debt
conveyance expressly reserves easements, it is all the more difficult to
was not originally property related: for example, a normal
imply a reservation, as the parties must be taken to have turned their
contractual debt) was a person with an interest in the land
minds to the matter. Also, we might add (as does the court) that it is
under the lease so as to apply for relief in the event that a
hard to see how such an unspecific right to enter at some time in the
landlord should seek forfeiture. Pill LJ, dissenting, argued that
future to construct an access road can properly be regarded as an
such a person was outside the scope of s 138 (9C) of the County
easement at all.
Courts Act 1984 and s 146 of the LPA 1925, because the debt did not arise from a transfer or creation of an interest in land.
Notes (1)
The majority were prepared to stretch the interpretation of these statutes on the ground that it would be unfair for the holder of a
Easements. Bratt’s Ltd v Habboush, 7 July 1999, in the High
charging order to have his security destroyed by a landlord’s
Court, decides that the right to enjoy lighting and illuminated
forfeiture without at least being given the opportunity to apply
‘exit’ signs in the common parts of leasehold premises was an
for relief. On principle, many would argue that Pill LJ is right:
easement, granted in favour of the tenant over the landlord’s retained land (the common parts). The easement had been granted either expressly or by s 62 of the LPA 1925. This decision could have interesting consequences for landlords who deny any obligation to maintain the common parts of residential apartment or commercial office blocks. If the tenant’s
however, common sense must go with the majority. (5)
Mortgages: rights of mortgagor. In Starling v Lloyds TSB (1999) The Times, 12 November, CA, the court held that a mortgagee’s duty of good faith to a mortgagor did not include a duty to consider reasonably the mortgagor’s request for permission to lease out the mortgaged property. In the absence of bad faith,
171 • STUDENT LAW REVIEW • 2000 YEARBOOK
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improper motive or dishonesty, an unreasonable refusal to give
necessary for the protection of the rights of others within Art 8 of
consent was not actionable. In Citibank International plc v
the Convention.
Kessle (1999) Lloyd’s Rep Bank 123, CA, the court held that it was not a violation of Community law for a mortgagee to refuse consent to a mortgagor to let the premises where this had the (alleged) effect of denying the mortgagor free movement by preventing the mortgagor taking up employment elsewhere in the Community. These are important cases. Most mortgages contain a clause preventing the mortgagor letting the property without first obtaining the mortgagee’s consent. Apparently, there is little a mortgagor can do in such cases if the mortgagee refuses, save sell the property. Both cases now wait on appeal to the House of Lords. Should either go against the mortgagee, the impact on the law of mortgages will be significant.
Comment This is a case packed with interest and could well turn out to be a decision of the utmost importance. The human rights argument has been tried and rejected before (see Albany Homes v Massey [1997] SLRYB 159) and the substantive point is unremarkable. Human rights lawyers may be intrigued that the court appears to suggest that Art 8 was inapplicable because the Birmingham Midshires was not a ‘public authority’. We might think, however, that the court itself is a public authority and that the court will be caught by Art 8 when the Human Rights Act is in force. Of greater significance to property lawyers are the two other points. The argument that TOLATA has, accidentally, overruled Flegg
Trusts of land, overreaching and estoppel
in registered land (so that payment to two trustees does not always
Birmingham Midshires Mortgage Services v Sabherwal (Sudesh) (1999) 17 December, not yet reported, CA
course, if correct, this would require a fundamental re-think of how
overreach) has been mooted academically (see [1998] Conv 168). Of trusts of land work, as well as destroying current lending practice. The court in this case does not deal with the issue directly (because all the
Facts
facts occurred pre-TOLATA), but there is little doubt that Robert Walker
The Sabherwal family home was mortgaged to Birmingham Midshires
beyond probability. While not deciding the matter, this case provides
who had paid the mortgage monies to the two Sabherwal sons, the two
strong evidence that two-trustee overreaching in registered land
registered proprietors. There was no dispute that Mrs Sabherwal, their
remains intact after TOLATA in the same circumstances as prior its
mother, held a substantial equitable interest in the property and hence
entry into force.
LJ (with whom Alliot J agreed) regards such a conclusion as well
the sons were trustees of land holding for themselves and their mother
The estoppel issue is also a matter of moment. It is well known
in equity. Mrs Sabherwal had signed a consent form postponing her
that the person benefiting from an estoppel cannot be sure of the
rights in favour of the Birmingham mortgage, but she now pleaded
precise nature of his or her remedy until such is crystallised by the
undue influence. However, the Birmingham mortgage had replaced an
court. Prior to such crystallisation, the claimant has an ‘inchoate
earlier mortgage and Mrs Sabherwal had undoubtedly consented to
equity’, a sort of unquantified equitable right. Some commentators
this. Birmingham sued for possession following default on the loan. Mrs
argue that this ‘inchoate’ right is itself a proprietary right so that it can
Sabherwal resisted, claiming an overriding interest under William and
bind a purchaser of land: for example, as an overriding interest. Others
Glyn’s Bank v Boland. The mortgagee relied on overreaching, having
argue that it is the crystallised right which is important, so that if the
paid the capital monies to two trustees of land as in City of London BS v
court crystallises the right as a personal right (for example, a licence), it
Flegg. In reserve, it pleaded Mrs Sabherwal’s consent, either to its own
will not bind. This case supports the view that it is the nature of the right
mortgage or as transferred from the first mortgage under the Equity and
awarded that is important, not the fact that it came from an estoppel.
Law Home Loans v Prestidge rule. Mrs Sabherwal countered by saying
Here (doubtfully assuming that the estoppel could be established), the
that Flegg was inapplicable because either: (a) in relation to registered
estoppel right would have been an equitable proprietary co-ownership
land it had been overruled by the Trusts of Land and Appointment of
right. These rights can bind, but can also be overreached and its origins
Trustees Act (TOLATA) 1996; or (b) her interest arose by estoppel and
in estoppel could not stop overreaching. If it were the ‘inchoate’ equity
such rights were not overreachable; or (c) the award of possession
that was important, then overreaching might have been barred. Once
would be contrary to Art 8 of the European Convention on Human
again, however, this is not conclusive. The issue was obiter and other
Rights (respect for family life). The issues on consent were made
recent cases (for example, Locabail v Bayfield Properties, 9 March
redundant by the court’s finding.
1999, HC) seem to adopt the contrary approach and regard the
Held (a)
All material facts occurred before the entry into force of TOLATA, so there was no possibility of accepting the argument that it had overruled Flegg in this case.
(b)
This is a question that has remained unsettled for too long and, hopefully, the House of Lords will soon pronounce.
Undue influence: manifest disadvantage
If Mrs Sabherwal’s interest had arisen by estoppel (which was doubtful given that this was a clear Lloyds Bank v Rosset resulting/constructive trust case), it was the nature of her right as an equitable owner that was important, not the method by which that right arose. Consequently, it was overreachable.
(c)
estoppel itself as proprietary, irrespective of how the court crystallises it.
The Human Rights Act 1996 was not yet in force and could give Mrs Sabherwal no protection. In any event, the mortgagee’s right of possession, allegedly denying her right to family life, was a process ‘in accordance with law’ and
172 • STUDENT LAW REVIEW • 2000 YEARBOOK
Barclays Bank v Coleman [2000] 1 All ER 385
Facts The bank held an ‘all monies’ charge over the jointly owned matrimonial home. The wife contended that she had been unduly influenced to execute the charge. The transaction had been overseen by a legal executive employed by a firm of solicitors. The legal executive had completed and returned a (now normal) certificate to the
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bank certifying that the wife had been properly advised. The case raised
in standard mortgage terms for the benefit of borrowers
issues of presumed undue influence. The trial judge held that the bank
generally. (See, further, the Commercial Law section.)
could not rely on the certificate as it had not been completed by a solicitor but that the wife could not demonstrate the necessary manifest disadvantage required to have the charge set aside.
Trusts of land, co-ownership and TOLATA
Held (1)
The bank could rely on the certificate and was thus not affected
(2)
(Obiter) That manifest disadvantage was, for the time being, still
by notice of any undue influence. required in cases of undue influence, but that it did not have to be large. It could be small, provided it was not de minimis. So,
The Mortgage Corporation v Shaire and Others, 25 February 2000; [2000] 1 FLR 973, HC
Facts
subjecting the wife to greater financial risks than she
A house was jointly owned by Mr and Mrs Shaire and the purchase
appreciated – by executing an ‘all monies’ charge instead of a
financed by mortgage. The couple separated and a Mr Fox moved in
charge for a fixed amount – could be manifest disadvantage.
with Mrs Shaire. As part of the divorce settlement, legal title to the house was transferred to Mrs Shaire and Fox in unspecified equitable
Comment
shares. Mrs Shaire and Fox re-mortgaged to Chase Manhattan Bank and
It is no surprise that the court found that the bank could rely on the
for a much larger sum, this time forging Mrs Shaire’s signature. Fox
certificate. In terms, if a bank can rely on a solicitor’s certificate, then it
died, TMC sought a sale of the house under s 14 of TOLATA. The issues
should be able to rely on a legal executive’s certificate issued within the
were (1) what was Fox’s share in the house (and therefore TMC’s
umbrella of a solicitors firm. It now appears that such certificates will
share)?; (2) was Mrs Shaire affected by the TMC mortgage even though
protect a bank in all but the most extreme cases: for example, where a
she had no knowledge of it?; and (3) what were the applicable
lender knows (or maybe ought to know) that the certificate has been
principles for considering an application under s 14 of TOLATA?
paid off the first mortgage. Thereafter, Fox re-mortgaged again to TMC
issued falsely. As for the manifest disadvantage point, at last, there is some light at the end of the tunnel. The court here is bound by the House of Lords’ decision in National Westminster Bank v Morgan and so must search for ‘manifest disadvantage’. Happily, this court takes the
Held (1)
Following Stokes v Anderson and Midland Bank v Cooke, the
view that ‘manifest’ means ‘clear and obvious’, rather than ‘large’ in
subsequent conduct of the parties was relevant in determining
substance. Thus, an obvious disadvantage will do, even if in
their ‘common intention’ as to equitable ownership under the
consequence the claimant does not suffer much. So, the wife agreeing
Lloyds Bank v Rosset principles. Mrs Shaire had 75% and Mr Fox (hence TMC) 25%.
to a burden larger than she anticipated is an ‘obvious’ (and so manifest) disadvantage, even if the impact on her is not great. Hopefully, this will
(2)
Mrs Shaire was not bound by the TMC mortgage as such,
mean that the court will no longer deny a remedy to an unduly
because her signature had been forged. However, the money
influenced mortgagor/surety just because they got something out of the
provided by the TMC mortgage had been used to pay off the
deal, such as a benefit from the business financed by the charge. In fact,
Chase Manhattan mortgage and she had consented to Chase
it is apparent that this court would be happy to abandon the concept of
Manhattan. Therefore, her interest was bound by TMC’s
manifest disadvantage altogether. It is not required in cases of actual
mortgage to the extent to which her interest had been bound by the Chase mortgage. That is, TMC was subrogated to Chase.
undue influence and there are no reasons of principle for its retention in ‘presumed’ cases. Surely it is enough that the claimant has entered into
(3)
TOLATA changed the law concerning the weight to be given to
a bargain, having legal consequences, that they would not otherwise
the interests of creditors when deciding whether to order a sale
have done but for the undue influence.
under s 14 of TOLATA. Now, the interests of creditors (for example, TMC) and other owners (for example, Mrs Shaire)
Notes:
were to rank equally and a sale was not the first presumption
(1)
Insolvency Act 1986 applied).
Determination of leases. In Barrett v Morgan [2000] 1 All ER
(unless this was a case of bankruptcy to which s 335A of the
481, the House of Lords reverse the Court of Appeal and held that a valid notice to quit served by a freeholder on a tenant will also bring to an end any sub-tenancy carved out of the tenancy
(2)
Comment
. This has always been the orthodox rule as ‘the branch falls
This is an important case. First, it is clear that the strict approach to
with the tree’. The mere fact that the tenant agrees to such a
ascertaining equitable interests put forward by the House of Lords in
procedure, and would welcome it as a way of removing the
Lloyds Bank v Rosset is being eroded. This case, like Midland Bank v
subtenant (as in this case) does not alter this rule.
Cooke, comes close to deciding that the court can infer a common
Mortgages: unfair terms. In Director General of Fair Trading v
intention on the basis of what the parties would have done had they
First National Bank plc, the High Court held that a clause in a
thought about it, especially if there is some conduct relating to the
mortgage fell foul of the Unfair Terms in Consumer Contracts
house even though it does not amount to an express promise. This is
Regulations 1994 (now the 1999 Regulations). Although the
contrary both to Rosset and other House of Lords authority (Gissing v
regulations apply only to mortgages which are regulated by the
Gissing) which decided that an interest could be established either on
Consumer Credit Act 1974, this is a significant step forward in
the basis of monetary payment to the purchase price (in proportion) or
mortgage regulation and may well herald a substantive change
on express promises. Nevertheless, it is the coming (or rather, returning)
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philosophy and we can expect more cases of claimants seeking a
on the meaning of animus possidendi: the intention to possess which
‘fairer’ (that is, enlarged) share that goes beyond their proportional
must accompany factual possession. First, it is an intention to possess,
contribution to the acquisition of the property or beyond the express
not to own. This must be correct, as the squatter knows she does not
promise they were made. Secondly, and less controversially, Mrs
own the land! Secondly, knowledge of the future plans of the owner
Shaire’s interest is made subject to TMC’s mortgage to a limited extent
does not destroy the intention. In other words, as we know already
(even though she did not consent to it) because she had consented to
(Bucks CC v Moran and s 8(4) of the Limitation Act 1980)), the ‘implied
an earlier mortgage which TMC’s money had paid off: that is,
licence’ theory is dead. Thirdly, a willingness to take a permission from
subrogation. This has happened many times before (see, for example,
the owner does not negate the intention to possess if the owner does
Castle Phillips v Piddington). What is interesting is that Neuberger J
not then give the permission. As Neuberger J explains, although such
prefers the straightforward subrogation analysis, where the new
willingness may suggest that the squatter does not have the necessary
mortgagee (TMC) steps in to the shoes of the paid off mortgagee
intention, this is misleading. The squatter intends to possess the land
(Chase), rather than the more problematic ‘transferred consent’ theory
without permission (after all, she is there!) even though she would be
of Equity and Law Home Loans v Prestidge.
happy to take permission were it granted. Of course, all this is a matter
Thirdly, and most interestingly, Neuberger J considers the effect
of judgment and this case is interesting because it highlights how the
of TOLATA on applications for sale of co-owned property where one
focus in adverse possession has shifted to the intentions of the squatter
existing owner objects to the sale. Under the old trust for sale and s 30
and away from the actions of the paper owner. Consequently, as in the
of the LPA, a sale was almost automatic if the applicant was a creditor
case, nothing short of the paper owner issuing proceedings for
such as a bank (see Re Citro) and this was also the position if one of the
possession against the squatter will ‘stop the clock’, by which time it
owners was actually bankrupt. Now, the trust for sale has gone and s 14
may be too late.
of TOLATA has replaced s 30. Many commentators argued in
As said, this is all good law and the case also illustrates just how
consequence that a sale was not now to be presumed just because the
minimal factual possession need be in some cases. What is noteworthy
applicant was a creditor and this case confirms that all parties have
is that Neuberger J then launches into an attack on the very concept of
equal weight within the guidelines laid down by s 15 of TOLATA
adverse possession itself (a good, short synopsis of the problem), in
(where relevant considerations are listed). This is most welcome and
much the same way as the Law Commission in its Report No 254 on
fully in keeping with the reasoning behind moving from a trust for sale
the future of land registration. It is not so much that these criticisms are
to a trust of land. It will mean in practice that banks will not get their
misguided (although this author thinks some are), rather that, given
money so quickly and ‘innocent’ co-owners will keep their homes for
Neuberger J’s obvious reluctance to find in favour of the squatter (‘a
longer. Note, however, that if one of the co-owners actually is made
conclusion which I arrive at with no enthusiasm’), it is surprising that he
bankrupt, different rules apply (see s 335A of the Insolvency Act 1986)
could find no way to support the paper owner. For example, the acts of
and a sale will be ordered subject possibly to a year’s suspension: see
factual possession were very sparse; the squatter’s animus possidendi
Re Bennett, 16 March 2000, sale ordered because one co-owner
was not obvious given their continual pressing of the legal owners for
bankrupt. There is thus the possibility that creditors will now seek to
permission and their equivocal acts in relation to the land; and, thirdly,
have co-owners made bankrupt in order to get a sale under the
the paper owner did a number of things which on another day might
Insolvency Act when they would be denied one under TOLATA.
well be thought to have ‘stopped the clock’ in time: for example, taking action at the land registry to ward off the squatter’s claims. This one
Adverse possession, animus possidendi and why it’s all got to go! Pye Ltd v Graham [2000] 3 WLR 242, HC
must be heading straight for the Court of Appeal.
Proprietary estoppel and unconscionability; does anybody have a clue?
Facts Pye were paper owners of the disputed land. They had allowed Graham to have limited agricultural use of the land. Graham was aware that Pye intended to develop the land in the future and his use was not inconsistent with Pye’s planned use. When Graham asked to be
Gillett v Holt [2000] 2 All ER 289, CA; Evans v James (2000) EGCS 95, CA; Flowermix v Site Development (Ferndown) Ltd, 11 April 2000, HC
allowed to continue using the land, Pye refused, citing its future plans.
Facts
Graham continued to use the land, albeit hoping for permission from
Gillett v Holt is the appeal from Carnwath J’s rejection of a claim in
Pye. Graham now claimed the land by 12 years adverse possession.
proprietary estoppel considered in [1998] SLRYB 156. The claimant had worked for the defendant for 40 years and had been promised
Held Graham had established 12 years factual possession plus the relevant animus possidendi and Pye’s title was barred. Obiter, the law of adverse possession should largely be done away with in the modern age.
Comment As to the law of adverse possession, this case provides useful guidance
174 • STUDENT LAW REVIEW • 2000 YEARBOOK
property in the defendant’s will. The defendant changed his mind and made a new will in favour of another. Carnwath J had dismissed the claim on the basis of lack of detriment and no unconscionability because Gillett must have realised that Holt could change his mind by changing his will. In Evans v James, one Hopkins had entered onto negotiations with James for a tenancy of agricultural land. As the contract was about to be signed, Hopkins had a stroke and never recovered. James claimed
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the tenancy on the basis of estoppel, having acted to his detriment
answer for the wrong reason. So, what do you tell your client next time
before Hopkins’ death on the basis of the understanding that the tenancy
he or she asks, ‘will I win on estoppel’?
would be granted. In Flowermix v Site Development, the defendant had agreed in writing to transfer land to the claimant. That land was described in such an uncertain manner that the written contract was not sufficiently
Notes 1
Registered land. Horrill v Cooper, 29 February 2000, CA, clears up a difficult decision at first instance on the scope of a court’s
certain to be enforceable. Flowermix claimed title by proprietary
power to order rectification of the register under s 82 of the LRA
estoppel.
1925. The appeal court confirms that there is no general power
Held
to order rectification simply on the grounds that it appears just
(1)
In Gillett, that there was a clear assurance, reliance and
what we knew from Norwich and Peterborough BS v Steed. In
detriment. Further, it was the very fact of the withdrawal of the
fact, the result was the same as rectification was properly
assurance after the detriment had occurred that made it
ordered on other grounds, as the search of the land charges
unconscionable. Gillett was entitled to succeed in estoppel.
register (on which title registration was then based) was
(2)
defective.
In Evans, that there was no estoppel as the parties knew that the agreement was always ‘subject to contract’. Thus, James could
(3)
to do so. This overrules the first instance judge and confirms
2
Easements. Hair v Gillman, 17 February 2000, CA, is a
not complain at the absence of a written contract and there was
successful claim to an easement of parking under s 62 of the
no unconscionability.
LPA. Succesful cases under s 62 are rare (the section is usually
In Flowermix, that the claimant was entitled to the land by
expressly excluded) and this is a classic: a personal permission
estoppel.
to park given to a tenant, who then purchased the freehold, and the personal permission was transformed into an easement.
Comment All these cases turn on whether it was unconscionable for the owners of
Nothing new, but a good modern example. 3
that the right to store motor vehicles, as opposed to ‘normal’
land to go back on the assurances they had given and which had been
parking, cannot be an easement as it would amount to
relied on to detriment. (In Gillett, the Court of Appeal found that Gillett
exclusive use of the servient land. Again, absolutely correct, but
had suffered detriment and this does look correct.) Evans is the clearest,
it might be difficult in the future to distinguish between parking
and arguably, the only correct decision. The essence of estoppel is unconscionability: that is, it must be unconscionable for the owner of land now to rely on strict formalities (a written contract, a will) having
proper (an easement) and storage (not an easement). 4
land so that it is capable of binding future owners of it. Morrells
that there must be formalities (‘subject to contract’), it cannot be
v Oxford United FC, 21 July 2000, CA, confirms that this effect
unconscionable to insist on that. There can be no estoppel, even
can be excluded by implication as well as by express words. In
though there has been assurance, reliance and detriment because
the case, the court found that the relevant covenant was ‘clearly
everybody knew a written contract was needed. By the same lights,
intended’ not to bind anybody but the covenantor, so s 79 was
Flowermix is a difficult decision. The parties tried to use formalities and defendant be made to transfer the land by estoppel? Why is it
necessarily not applicable. 5
illustration of the wide discretion enjoyed by courts in granting
when both sides tried and failed to conclude one? If estoppel works
relief from forfeiture. The tenants had not behaved well and had
here, what is the point on insisting on written contracts at all? Gillett lies
broken a covenant against sub-letting. However, forfeiture
in a no-man’s land in the middle. Mr Gillett knew that a will was
would give a wholly disproportionate gain to the landlord and
required and that wills could be changed, so was it unconscionable for say that the unconscionability resides in the mere fact of a withdrawn promise after detriment (for example, see Evans above). If at all, the unconscionability is that Holt led Gillett to believe that he would have the land in all circumstances: that is, that Holt would not change his will, ever. If this was true, then Holt has promised the land to Gillett irrespective of whether formalities were completed or not and he deserved the estoppel. This might seem confusing. It is. The point is that the courts have not developed a clear meaning of ‘unconscionability’ in the law of
Forfeiture under s 146 of the LPA. Mount Cook Land Ltd v Hartley, 11 February 2000; (2000) EGCS 26, HC, is a recent
unconscionable for the defendant to plead the lack of a written contract
Holt to change his will? The Court of Appeal is, with respect, wrong to
Freehold restrictive covenants. It is trite law that s 79 of the LPA will annex the burden of a restrictive covenant to the servient
already made an assurance. If, as in Evans, the owner had made it clear
failed: the written contract was too uncertain. How then can the
Easements. Batchelor v Marlow, 11 May 2000, HC, illustrates
so relief would be given. 6
Mortgagee’s duties. Raja v Lloyds TSB, 19 April 2000, HC. In exercising its power of sale, a mortgagee is under a duty to obtain a proper price and this case decides that a claim by the mortgagor must be brought within six years, being a duty arising in equity but analogous to duties in tort. Note, a mortgagee has 12 years to enforce its contractual claim for money owed against a mortgagor, this being an exception to the normal, shorter period for contractual claims. Nobody ever said the law of mortgages was even handed!
estoppel. In some cases – Evans – they get it right. In others – Flowermix – they get it wrong. In Gillett, the absence of a proper theory about unconscionability in estoppel led – at least in my view – to the right
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Case notes Reynolds v Times Newspapers Ltd ..........................................................................178 Godfrey v Demon Internet Ltd ................................................................................178 Southwark LBC v Mills ............................................................................................179 McFarlane v Tayside Health Board ..........................................................................180 Kent v Griffiths ........................................................................................................181 Holbeck Hall Hotel Ltd v Scarborough Borough Council ......................................182 Arthur JS Hall & Co (A Firm) v Simons ....................................................................183 Phelps v Hillington LBC; Anderton v Clwyd CC; G (A Minor) v Bromley LBC; Jarvis v Hampshire CC ........................................................................................184 Heil v Rankin ..........................................................................................................184 Jolley v Sutton LBC ..................................................................................................185 W v Essex County Council ......................................................................................185 Waters v Commissioner of Police of the Metropolis ................................................186
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Case notes by Roderick Bagshaw, MA, BCL, Tutor and Fellow in Law, Mansfield College, Oxford Libel – qualified privilege
... reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well being: whom to employ or work for, whom to promote, whom to do business with or vote for.
Their Lordships also pointed out that requiring malice to be proved would be particularly harsh on politicians in England given the rule that journalists are not generally required to disclose their sources: It would be impossible in many circumstances to prove malice without knowing where the information came from. Lord Steyn presented this as his primary reason for rejecting a special privilege rule and contrasted the position in the US where a special rule does exist but claimants are
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010, HL
entitled to a pre-trial inquiry into the sources and editorial decision making. Furthermore, their Lordships thought that it would be
Facts
inappropriate to provide special protection for political information and not for other matters of serious public concern. Indeed, Lord Steyn
Albert Reynolds, the former Prime Minister of Ireland, claimed that he
suggested that to design the law using broad categories such as
had been libelled by an article published in the Sunday Times. A jury
‘political information’ was at variance with the approach of the
found that some of the allegations in the article were untrue but refused
European Court of Human Rights which assesses the balance between
to award any damages. The Court of Appeal held that the trial judge
free speech and the protection of reputation in the light of the concrete
had misdirected the jury and that a retrial was therefore necessary. The
facts of each case. Lastly, throughout the speeches there are oblique
main question for the House of Lords was whether the defendants
references to an apparent fear that any broad privilege for journalists
could put forward the defence of qualified privilege at the retrial.
would be likely to be abused. Lord Nicholls, for instance, put the matter
Held (1) (2)
of journalistic ethics by the national press, with its own commercial
The common law should not develop a special category of the
interests to serve, does not always command general confidence.
defence of qualified privilege covering ‘political information’.
Though he also insisted that the refusal of a special privilege should not
The ordinary common law defence of qualified privilege will
inappropriately ‘chill’ free speech because ‘The common law does not
protect political discussion in some circumstances, and the
seek to set a higher standard than that of responsible journalism, a
balancing process which determines the scope of the defence
standard the media themselves espouse’.
should be carried out by each trial judge taking into account the (3)
tactfully when mentioning the ‘sad reality’ that the handling of matters
Whilst the House of Lords rejected a special generic privilege
specific circumstances of the case.
for political information, this should not disguise the fact that the
The defence of qualified privilege could not be relied on in the
decision amounts to a step forward in the protection of free speech.
retrial of this case, particularly because the allegations in the
Their Lordships clearly promoted consideration of the importance of a
article were serious and the article failed to mention Mr
free press to a more prominent place than it had previously enjoyed in
Reynolds’ explanations of events. (Lords Steyn and Hope
the application of the ordinary qualified privilege test of whether the
dissented on this point.)
newspaper was duty bound to publish and the public had a legitimate interest in the publication. Lord Nicholls, with whom Lords Cooke and
Comment As is well known, in the tort of libel the claimant does not have to prove that any defamatory allegations of fact were false. Rather, it is for the defendant to establish either that the allegations were true (the defence of justification) or were published on a privileged occasion. The defence of privilege reflects the view that, in certain circumstances, it is particularly important to encourage free communication of information. Such encouragement is provided either by immunizing everything published on such occasions from possible liability (absolute privilege, as applies, for instance, to utterances in Parliament), or by protecting what is published from liability unless the claimant can prove that the defendant was malicious (qualified privilege). Thus, in arguing for a qualified privilege for the communication of political information, the lawyers for Albert Reynolds were arguing that newspapers writing about political matters should only be liable if they were proved to be acting maliciously. The House of Lords thought that to require politicians to prove malice before they could vindicate their reputations against false political information would provide inadequate protection for reputation. Lord Nicholls, in particular, stressed the value of protecting reputation because:
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Hobhouse expressly agreed, insisted that in deciding whether it was in the public interest for a particular story to be run ‘Any lingering doubts should be resolved in favour of publication’. Perhaps more boldy, Lord Steyn proclaimed that the case was the occasion to settle that ‘the press has a general duty to inform the public of political matters and that the public has a right to be so informed’, though he later clarified that he agreed with the other Lords that the existence of any qualified privilege based on this reciprocal duty and interest depended ‘on a weighing of the particular circumstances of the case’. The general impression left by the case is that, while a politician will not have to prove malice in order to sue for damage caused by false political information, he or she is likely to have to be able to point to at least some violation of reasonable standards of responsible journalism in order to prevent the defence of qualified privilege attaching.
T O R T
Libel – publication – internet
L AW
between different countries (as they do!) then those countries with the most stringent regulation may put their companies at a competitive disadvantage. As Morland J pointed out in his judgment, the Congress
Godfrey v Demon Internet Ltd [1999] 4 All ER 342, QBD
of the US has provided broad statutory immunities for internet service providers.
Facts An unknown person made a posting to an internet newsgroup which defamed the claimant. The posting was stored on the defendant’s server
Private nuisance – lack of sound-proofing
in England and was accessible to its customers. On 17 January 1997, the claimant asked the defendant to remove the posting from its server
Southwark LBC v Mills [1999] 3 WLR 939, HL
but it did not do so. The claimant alleged that the defendant was responsible for the libel from 17 January onwards. The defendant
Facts
argued that it did not ‘publish’ the defamatory statement and could also rely on the statutory defence of innocent dissemination under s 1 of the Defamation Act 1996. Morland J’s judgment considered these defences.
The claimants were tenants in houses with inadequate sound-proofing. They could hear everything that their neighbours were doing. The claimants sued their neighbours’ landlords alleging that they were authorising private nuisances.
Held Section 1 of the Defamation Act 1996 provides a defence for those who
Held
can establish three conditions: that they were not the author, editor or
Although the claimants were living in intolerable conditions, this was
publisher of the statement complained of; that they had taken care in
not a result of their neighbours doing anything which could be
relation to the publication of the statement; and, that they had no
described as unreasonable or wrongful. Hence, the neighbours would
reason to believe that they had contributed to the publication of a
not be liable if sued personally for private nuisance, and it could not be
defamatory statement. It was accepted that the defendant could meet
said that their landlords were authorising any such nuisances.
the first condition and was not a ‘publisher’ of the statement within the special statutory definition of that term. Morland J held, however, that the defendant could not establish that it had taken reasonable care and had no reason to believe that it had contributed to the publication of a defamatory statement, because it had left the defamatory posting on its server even after notification that it was defamatory. On the question whether the defendant had published the defamatory statement at all, Morland J pointed out that at common law booksellers, libraries and distributors had all been held to have published libels contained in books and magazines. By analogy, an internet service provider which stores a posting on its server publishes the statements in that posting whenever one of its customers accesses the newsgroup and sees the statements.
Comment To evaluate this case, it is important to bear in mind that the reason why the claimants were relying on the tort of private nuisance was that they had no contractual rights as against their own landlords to insist on sound insulation. This factor was particularly important in these cases because the neighbours’ landlords were also the claimants’ landlords! In other words, the claimants could not sue their own landlords for lack of sound-proofing directly, so they were seeking to sue indirectly by arguing that they were liable as landlords of their neighbours. The case does not decide any important novel point relating to the tort of private nuisance but it does clarify that the standard of reasonableness that determines liability in private nuisance is not the
Comment
same as the standard of reasonable care which is the centrepiece of the
It is important to appreciate that in this judgment Morland J only
figure prominently in the tort textbooks of the next century, that:
decides that internet service providers (ISPs) are responsible for
... the use of the word ‘reasonable’ in this context [that is,
publishing the material which they store and make available to their
private nuisance] is apt to be misunderstood. It is no
customers. ISPs will still have a defence under s 1 of the Defamation
answer to an action for nuisance to say that the defendant
Act 1996 if they can establish that they took reasonable care and had
is only making reasonable use of his land. … What is
no reason to believe that the statement was defamatory. In practice,
reasonable from the point of view of one party may be
therefore, the main effect of this decision is likely to be to force ISPs to
completely unreasonable from the point of view of the
adopt strategies to respond swiftly as soon as they receive any
other. It is not enough for a landowner to act reasonably
suggestion that a posting is defamatory.
in his own interest. He must also be considerate of the
tort of negligence. Thus, Lord Millet stated, in a dicta which is likely to
There are some reasons for being concerned about even this,
interest of his neighbour. The governing principle is good
however. First, if ISPs ‘play safe’ and immediately obliterate any posting
neighbourliness, and this involves reciprocity. A
which they have been notified may be defamatory the result may be
landowner must show the same consideration for his
equivalent to creating widespread prior restraint in an important new
neighbour as he would expect his neighbour to show for
forum of communication. Unless ISPs have a commercial incentive to
him.
take the risk of liability for libel (or, like some newspaper editors, see
On the facts of the case, clearly the claimant could not claim that it was
the risk as one that must sometimes be accepted in order to advance
unreasonable for his neighbour to continue living in the house without
the public interest), then they may become the conscripted censors of
sound-proofing since she, the claimant, was unwilling to offer the same
electronic communication. Secondly, if the laws regulating ISPs vary
level of protection from noise in return. In some ways then, the case
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resembles an extreme application of the locality principle: In a
Tort law, after all, regularly provides compensation for pain and
neighbourhood of homes with inadequate sound-proofing, people must
suffering and there was no obvious justification for treating pregnancy
expect to have to put up with significant disturbance, but are also
as involving a less serious or more palatable kind of pain. The majority
permitted to create significant disturbance through ordinary domestic
also thought that the mother should be able to claim for economic
use. The defendant council was clearly relieved that the House of Lords
losses which were consequential on the pain and discomfort of
reached the decision that it did. The estimated cost of installing sound-
pregnancy. There were some minor differences, however, as to what
proofing in all the borough’s premises with similar problems was £37
this was thought to include. Thus, Lord Slynn was willing to award an
million.
amount for ‘equipment on the birth of the baby’, whilst Lords Hope and Clyde were not willing to make an award for the baby’s layette
Update
(Concise OED, ‘a set of clothing, toilet articles, and bedclothes for a newborn child’).
The Autumn 1999 issue of the Student Law Review ((1999) 28 SLR 62)
Whilst their Lordships were unanimous in rejecting the claim
discussed the case of Hussain v Lancaster City Council [1999] 2 WLR
for the costs of rearing Catherine, they displayed a wider variety of
1142. The claimants in this case, who the Court of Appeal decided
approaches in explaining this conclusion. Importantly, the question
could not claim against the local authority landlords for a failure to
whether parents in a case such as this could claim for the special costs
control the racial harassment which they suffered at the hands of
of bringing up a child who was born with disabilities was left open. In
council tenants, have now taken their case to the European Court of
order to deny an award for the costs of rearing Catherine, a healthy
Human Rights in Strasbourg. See (1999) The Guardian, 11 December.
child, Lords Slynn and Hope used the technique of defining the scope of the duty of care. Thus, they argued that it would not be fair, just and
Negligence – damages – birth of healthy child
reasonable to hold that the doctor’s duty was one to take reasonable care to protect the parents against this type of (pure) economic loss. Lord Clyde, by contrast, concentrated on the question of a just remedy and argued that the duty to make reasonable restitution for the wrong
McFarlane v Tayside Health Board [1999] 3 WLR 1301, HL (Sc)
done did not extend to providing relief from the financial obligations of caring for a child. Lords Steyn and Millett rejected these formalist
Facts
techniques. Lord Steyn thought that the principles of distributive justice
Mr McFarlane underwent a vasectomy and, after providing sperm
of bringing it up from a health authority or a doctor:
prevented parents of a healthy unwanted child from claiming the costs
samples to check that the procedure had been successful, received a
Instinctively, the traveller on the Underground would
letter saying ‘your sperm counts are now negative and you may
consider that the law of tort has no business to provide
dispense with contraceptive precautions’. This was incorrect. Mrs
legal remedies consequent on the birth of a healthy child,
McFarlane became pregnant and gave birth to a healthy child. She
which all of us regard as a valuable and good thing.
claimed damages for the pain and discomfort of the pregnancy and
Lord Millett’s reasoning was similar. He relied on the assertion that the
birth, and both she and Mr McFarlane claimed damages for the costs of
law must insist that the birth of a normal, healthy baby is a blessing and
bringing up an additional child.
not a detriment. Since the advantages and disadvantages of parenthood
At first instance, the judge struck out the claims on the basis that
are inextricably bound together, parents could not seek to transfer only
the benefits of parenthood transcended any loss. The claims were
the disadvantages to others. Interestingly, Lord Millett thought that this
restored on appeal, and the Health Board then appealed to the House
principle was also sufficient to preclude a claim by the mother for the
of Lords.
pain and discomfort of pregnancy. He would, however, have allowed
Held Damages for the pain and discomfort of pregnancy are recoverable but damages for the cost of bringing up a healthy child are not.
the parents to claim a conventional sum to compensate for the loss of an important aspect of their personal autonomy, the freedom to limit the size of their family. Two general aspects of the decision are worth further consideration. First, it should be noted how the duty-limiting technique
Comment
relied on by Lords Slynn and Hope interacts with the ordinary rules on
The questions which the House of Lords had to decide have troubled
is of a type that it was reasonably foreseeable that the claimant might
courts all round the world. It seems relatively uncontroversial to say that
suffer as a result of the breach of duty (and, hence, not too remote on
the defendant’s negligence altered the claimants’ lives. What is more
ordinary rules), there will nonetheless be no recovery because the duty
contentious is whether the changes to the claimants’ lives can be
does not cover that type of damage. The great advantage of this duty-
portrayed as harm or damage, and, even if they can, whether it is just
limiting technique is that it allows courts to respond to the need to
and reasonable to hold the defendant responsible for such
avoid, for instance, floodgates, more flexibly than by denying a duty
consequences. Their Lordships were certain that the law should respect
altogether. The obvious disadvantage is the difficulty in predicting how
the freedom of parents to decide to limit the size of their family, and
widely or narrowly a duty is going to be drawn.
remoteness of damage. The effect seems to be that, even where damage
should not regard a failure to arrange an abortion or to put a child up
Secondly, Lord Millett drew a distinction between legal policy
for adoption as in any way unreasonable. But, beyond this point,
and public policy. He identified ‘legal policy’ as ‘our more or less
opinions divided.
inadequately expressed ideas of what justice demands’ (citing Prosser
The majority (Lord Millett dissented) thought it was relatively
and Keeton). ‘Legal policy’ requires both that the law accords with
straightforward to treat the pain and discomfort of pregnancy as harm.
ordinary notions of what is fit and proper and that it avoids incoherence
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or inappropriate distinctions. Lord Steyn also relied on a similar
hospital). The defendant’s counsel raised two main arguments against
distinction. Thus, he insisted that ‘tort law is a mosaic in which the
imposing a duty to take reasonable care to confer such a benefit. First,
principles of corrective justice and distributive justice are interwoven’,
he argued that a public authority service provider could be equated
and that, in relying on principles of distributive justice (‘the just
with a private volunteer, and thus could only be held under a duty to
distribution of burdens and losses among members of a society’), he
take reasonable care to avoid causing additional harm to the claimant.
was avoiding the ‘quicksands’ of public policy. The purpose of this
Lord Woolf MR rejected this parallel by pointing to the fact that
distinction seems to be to identify the legitimate limits of the judicial
ambulance service providers are paid from public funds and thus not
role – legal policy is for judges, the quicksands of public policy for
equivalent to private volunteers who may have the opportunity to save
legislators. Importantly, ‘legal policy’ is treated as something which is
children drowning in puddles or daydreamers walking towards cliffs.
not made by judges. Rather it merely applies principles that are already
Indeed, ambulance service providers seem more closely related to
‘woven into the mosaic’ and intuitively known by the vast majority of
hospitals and doctors who clearly owe duties to take reasonable care to
commuters on the London Underground. Most students who have
confer benefits (treatments and cures). The London Ambulance Service
studied Jurisprudence or Legal Theory will be familiar with attempts to
could also be distinguished from a private volunteer because its powers
deny that judges make law and with the criticisms of this denial. Such
are statutory and in the circumstances it was under a public law duty to
criticisms can be adapted and turned on the distinction drawn by Lords
respond to the call (that is, it would have been irrational not to have
Steyn and Millett. Thus, a critic might argue that judges cannot (and
done so). Whilst the reasoning supporting the rejection of the parallel
should not) decide ‘what justice requires’ without some consideration
seems strong, it is important to remember that the parallel was relied on
of the effects of the possible options on society, and that judges must
by the court in the fire brigade case (Capital and Counties) despite the
also decide whether the predicted effects would be beneficial or
fact that fire brigades are publicly funded and have statutory powers.
harmful. Equally, a critic could condemn as unrealistic the assumption
The defendant’s second argument was that there was
that the intuitions of the commuters on the London Underground are
insufficient proximity between claimant and ambulance service
formed in a vacuum free from the influence of their opinions about
provider. The response of the claimant’s counsel was to argue that
questions of public policy. Such a critic would probably have preferred
sufficient proximity was established by the existence of a relationship of
the House of Lords to talk openly about the estimated cost of liability
specific reliance. There was some evidence of such reliance in this case
for the National Health Service and the desirability of devoting this
since the claimant’s husband would have driven the claimant to
proportion of limited health resources to the consequences of the
hospital had he not thought that the ambulance was on its way. Lord
provision of a medical procedure (vasectomy) which is usually
Woolf MR, however, seems to have found sufficient proximity without
provided to facilitate lifestyle choices.
adopting the specific reliance characterisation of the relationship. He treated the acceptance of the 999 call as the time when the duty arose,
Negligence – duty of care – ambulance
and not the time at which any reliance took place. Furthermore, he did not see the need to discuss what might be sufficient to amount to
Kent v Griffiths (2000) unreported, 3 February, CA
Facts
specific reliance. There are strong reasons for welcoming the rejection of specific reliance as a condition for the recognition of a duty: it would be unfortunate if tort law had to distinguish between victims according
The claimant’s doctor telephoned the London Ambulance Service for
to whether their spouses could drive and had a vehicle available.
an ambulance at 4.25 pm and the control replied ‘okay doctor’. Two
Instead of basing his decision on specific reliance Lord Woolf MR was
further calls were also made but the ambulance did not arrive until 5.05
content to explain why the relationship between claimant and
pm. The trial judge held that the ambulance service owed the claimant
defendant was closer than the relationships in the previous police and
a duty of care, found that the delay was culpable and decided that the
fire brigade cases. In the case of a 999 call for an ambulance, there was
claimant probably would not have suffered the same degree of injuries
likely to be a more easily identifiable person in need, and there was less
but for the delay. He awarded damages of £362,377. The London
risk of a duty to that person conflicting with any broader duties to the
Ambulance Service argued on appeal that it did not owe a duty of care.
general public. This approach of merely explaining how the relationship was closer poses a problem for those eager to predict the
Held
outcome of future cases because no clear rules were provided.
The appeal was dismissed. Although the Court of Appeal had
Woolf MR’s failure to identify precisely what is (and what is not)
previously held that the police (Alexandrou v Oxford [1993] 4 All ER
sufficient to establish proximity in such cases. (Though some will see
328) and fire brigade (Capital and Counties Plc v Hampshire CC [1997]
such a failure as the inevitable consequence of judicial reasoning
QB 1004) did not owe a duty to respond with reasonable care to 999
behind meaningless labels like ‘proximity’.) But his failure to put
calls, the position of ambulances was distinguishable. Ambulances
forward any precise rules seems deliberate, and is consistent with his
formed part of the health service and were usually called to assist a
response to the decision of the European Court of Human Rights in
particular individual rather than to assist the public at large. In this case,
Osman v United Kingdom (Case 87/1997/871/1083). Whilst Lord
where the delay was not a result of any decision about how the
Woolf MR is anxious that judges should not hesitate to strike out claims
resources available to the ambulance service should be deployed, a
that genuinely have no real prospect of success, he treated Osman as
duty of care should be recognised.
mandating careful attention to the facts of each case and extreme
Comment
No doubt some commentators will be disappointed by Lord
caution in applying widely or rigidly any statements found in previous cases. This view of Osman sees the European Court of Human Rights as
This case is notable because it appears to hold a public body liable for
challenging the legitimacy of a particular method of judicial reasoning
carelessly failing to confer a benefit (provision of prompt transport to
in cases involving public policy concerns (that is, the use of such policy
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concerns to justify the development of broad rules that can be applied
all the residents were safely evacuated.
across a wide range of cases). Osman purchases a more sensitive and
Whatever the correct classification of the rule (referred to by the
fine-tuned application of public policy concerns to the detailed facts at
Court of Appeal as ‘the Leakey principle’), this case extends it to cases
the price of a moderate reduction in predictability (and possibly
where the risk to neighbours is a withdrawal of support rather than any
consistency). If this is the correct view of Osman (the ratio decidendi of
emanation of fire or lumps of rock. This extension undermined the
Osman is a contentious issue), then the European Court of Human
traditional precedents (for example, Sack v Jones [1925] Ch 235) which
Right’s decision can be evaluated at two levels. First, one can ask
had held that a landowner was only liable if his positive acts withdrew
whether English tort law will benefit from more fine-tuning at the
the support that his neighbour’s land or building was entitled to receive.
expense of less predictability. Lord Woolf MR’s answer to this question
The trial judge, HHJ Hicks QC, pointed out that a refusal to make such
is an emphatic ‘yes’: ‘In so far as the Osman case underlined the
an extension would have led to the absurdity that owners of higher
dangers of a blanket approach, so much the better.’ Secondly, one can
ground had to take reasonable care to prevent it falling onto lower
ask the more formal question (which Lord Woolf MR did not discuss)
ground (Leakey) whilst owners of lower ground were not required to
whether it is sensible to suggest that there is a human right to a sensitive
take reasonable care to prevent higher ground being undercut. He
and fine-tuned application of public policy concerns to the detailed
stated that, personally, he would have preferred to exclude all large
facts of one’s claim.
scale long term natural processes from the duty, but regarded Leakey as preventing him from giving effect to that preference.
Landowner’s duty – risk of withdrawal of support
But, whilst the extension in this case might have been necessary to avoid an absurd distinction, a more significant question looms: just how far will Leakey be extended? To take two examples: There is currently authority that suggests that:
Holbeck Hall Hotel Ltd v Scarborough Borough Council (2000) transcript 22 February, CA
(1)
before my neighbour acquires an easement requiring my land to support the extra weight of his building, I am entitled even to take positive steps which will make it collapse (Lord Penzance
Facts As a result of a massive landslip, part of the Holbeck Hall Hotel collapsed and the rest had to be demolished. The slip was caused by the instability of coastal cliffs belonging to the defendants. The judge at first instance held that the defendants were liable for the damage to the hotel because they had breached a measured duty to take care to ensure that their land did not cease to support the claimant’s land. The defendants appealed.
in Dalton v Angus (1881) 6 App Cas 740); (2)
I am entitled to pump percolating groundwater (a positive act) from beneath my land even if this leads to a reduction in water beneath my neighbour’s land and causes damage to his buildings (Langbrook Properties Ltd v Surrey CC [1970] 1 WLR 161).
Are these precedents under threat from Leakey? Or can a sensible distinction be drawn between cases where the claimant has a natural right or easement (and I must take reasonable care to ensure that the
Held
operation of natural forces on my land does not harm this interest) and
The appeal was allowed. It is no longer the law that a landowner
am consequently free even to take positive steps which I foresee may
whose property ceases to support his neighbour’s property is not liable
cause his land to suffer)?
cases where the claimant has no such natural right or easement (and I
in the absence of positive action by him in withdrawing the support. A
Although it is not yet clear how far Leakey will extend, the
landowner who knows or ought to know that there is a risk that his
effect of any further extension will have been reduced by the Court of
property will cease to support his neighbour’s is under a measured duty
Appeal’s clarification of the nature of the ‘measured duty of care’. The
to take care to ensure that this does not occur. The scope of the duty,
word ‘measured’ reflects the fact that in both Goldman and Leakey it
however, is only to take care to avoid such damage as ought to have
was made clear that the positive duty of the landowner to take
been foreseen without further geological investigation. In this case, the
reasonable steps to neutralise risks created by nature was more
damage was far greater than anything which was foreseeable without
subjective than the duty to take reasonable care imposed by
such an investigation and thus it was not just and reasonable to make
mainstream negligence on those who create risks. Thus, in Goldman,
the defendants liable for it.
Lord Wilberforce stated that it was relevant to consider the defendant
Comment
landowner’s interests and resources relative to his neighbour’s: ... the owner of a small property where a hazard arises
The rule that landowners who know (or ought to know) that natural
which threatens a neighbour with substantial interests
forces have made their land a risk to their neighbours owe duties to their
should not have to do so much as one with larger
neighbours to take reasonable steps to eliminate these risks is commonly
interests of his own at stake and greater resources to
associated with Goldman v Hargrave [1967] AC 645 (the redgum tree
protect them.
struck by lightning) and Leakey v National Trust [1980] QB 485 (the
Applying this, Stuart-Smith LJ suggested that Scarborough Borough
crumbling of the cone-shaped mound, Burrow Mump). Whether the rule
Council’s duty might have been limited to warning the claimants of the
is properly to be classified as part of the tort of negligence or part of the
risk and sharing information about it (para 54). This hints that Stuart-
tort of private nuisance is a matter of some debate. The debate would
Smith LJ has some lasting affection for the old common law which
have been important if any of the residents of the hotel had suffered
provided that a landowner becoming aware of a nuisance created by
personal injuries as a result of the collapse since, after Hunter v Canary
natural causes on his land needed only to warn his neighbour and give
Wharf [1997] AC 655, there is considerable doubt as to whether such
him a reasonable opportunity to abate it. This old rule was rejected by
losses are covered by the tort of private nuisance. Fortunately, however,
Megaw LJ in Leakey on the ground that if a claimant had a right to
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abate (a remedy) that must mean that the defendant had committed a
advocates in civil cases, but only a bare majority supported abolition of
wrong. This reasoning is obviously flawed: There is no reason at all
the immunity in criminal cases too.
why the common law could not say that a landowner is only under a duty to tolerate his neighbour protecting himself from the consequences
The main arguments mustered in support of the immunity were: (1)
of natural forces and not under a duty to take positive steps to protect
divided loyalty – advocates owe a duty to the court and fulfilment of that duty might be inhibited by imposition of a
him.
private law duty owed to the client; The clarification of the ‘measured duty’ was only obiter dicta,
(2)
cab rank – barristers cannot refuse to act for a client because
however, because Stuart-Smith LJ’s main conclusion was that ‘the scope
they find him or his case unpalatable, so it would be unfair to
of Scarborough’s duty was confined to an obligation to take care to
impose on them a duty towards someone who they did not
avoid damage to the claimants’ land which they ought to have foreseen without further geological investigation’ (para 54). This conclusion
choose as a client; (3)
everyone else in the courtroom has immunity – judges and
(4)
collateral challenge – immunity prevents disappointed litigants
requires careful scrutiny because it appears to conflict with the ordinary tort law rule that if the type or kind of damage is reasonably foreseeable
witnesses have immunity;
then the full extent is recoverable, even if the full extent was not
seeking to undermine judgments against them by an indirect
reasonably foreseeable. Stuart-Smith LJ’s reasoning appears to be that
route, that is, showing that it was all the advocate’s fault that
this ordinary rule can be departed from because a rule more generous to
they lost.
defendants is appropriate in situations where they are being held liable
These arguments were dealt with in different ways. For instance, the
for the consequences of dangers that they did not create. (There are
main response to (1) was to deny that advocates would be inhibited by
obvious parallels between Stuart-Smith LJ’s reasoning in the face of
the private law duty. This opinion drew some empirical support from
concerns about the burden of liability for omissions and the approach of
the experience in Canada where advocates have never enjoyed an
Lords Slynn and Hope in McFarlane, above, to concerns about the
immunity. It was thought that successful claims would be rare, since the
burden of liability for pure economic losses.) Whilst Stuart-Smith LJ’s
standard of care would be set to reflect the difficulty of the advocates’
conclusion does not seem unfair, it does lead to the practical difficulty
art, and that vexatious claims would be easily disposed of under the
that a trial judge must decide exactly what extent of damage the
new Civil Procedure Rules (Rule 24.2) and would be difficult to fund.
defendant ought to have foreseen: for instance, if the defendant ought to
The main response to (4) was to point out that total immunity was
have foreseen that a fire might spread from his land and destroy his
unnecessary because a separate doctrine of abuse of process exists to
neighbour’s house, should he also have foreseen that his neighbour
prevent undesirable relitigation (though there were major differences as
might have a valuable art collection on the walls? Solutions to avoid this
to the scope of this doctrine). Alongside the demolition of the
problem would have been to find that the harm to the hotel was a
arguments for immunity a collection of arguments in favour of liability
different type or kind from what was reasonably foreseeable or that there
were put forward, including: (i) Wrongs Deserve Remedies; (ii) Equal
had been no carelessness because the defendants had reacted
Treatment of Professionals; and (iii) Abolishing the immunity made it
reasonably to the degree of risk that was reasonably foreseeable.
unnecessary to continue with the difficult business of defining its scope.
Unfortunately, the first of these solutions was awkward because to a
Perhaps the most surprising element of the judgments is that,
non-geologist a massive landslip appears the same kind of event as a
through all this debunking of arguments, it was assumed that advocates
minor landslip, whilst the second was awkward because the defendants’
will only owe duties to their clients (not to the opposition or others with
reaction to the foreseeable risk of a minor landslip had been found to be
an interest in the outcome) and both witnesses and judges will continue
inadequate.
to enjoy complete immunity. It is not clear, however, whether these rules can still be justified by public policy now that it is clear that
Negligence – advocates’ immunity
private law duties do not inhibit performance of public duties and vexatious claims can be effectively dealt with in other ways (indeed, in
Arthur JS Hall & Co (A Firm) v Simons [2000] 3 WLR 543, HL
Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747, the House of Lords decided that the witness’s immunity was
Facts
narrower than the Court of Appeal had supposed). Lord Hoffmann explained that:
In three cases, the judge at first instance struck out claims in negligence
The fact that the advocate is the only person involved in
on the ground that the defendants were entitled to rely on the
the trial process who is liable to be sued for negligence is
advocates’ immunity recognised in Rondel v Worsely [1969] 1 AC 191.
because he is the only person who has undertaken a duty of care to his client.
Held There is no longer a sufficient public policy justification for holding advocates immune from liability for professional negligence.
But, as solicitors learnt in White v Jones [1995] 2 AC 207 and surveyors learnt in Smith v Eric Bush [1990] 1 AC 831, not taking the claimant on as a client does not prevent a creative judge finding a duty of care.
Lords Hope, Hutton and Hobhouse (dissenting) the immunity should be retained for advocates in criminal litigation.
Comment This case was heard by a panel of seven Law Lords and their judgments fill in excess of 75 pages of the Law Reports. Their Lordships were unanimous in ruling against the continuation of the immunity for
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Negligence – duty – educational psychologists and teachers
circumstances of Pamela Phelps’s claim against Miss Melling, the educational psychologist, he concluded that ‘Her relationship with the child and what she was doing created the necessary nexus and duty’ (793B). Unfortunately, the question ‘is there the necessary nexus?’, like
Phelps v Hillingdon LBC; Anderton v Clwyd CC; G (A Minor) v Bromley LBC; Jarvis v Hampshire CC [2000] 3 WLR 776, HL
‘is there sufficient proximity?’ before it, is a question which provides little guidance to first instance judges in future cases. Indeed in imposing the duty on Miss Melling their Lordships emphasized different
Facts
factors. Lord Slynn stressed that Miss Melling was a professional and
Four cases raised questions about the duties that educational
future (at 793A). Lord Nicholls also attached importance to Miss
psychologists, teachers and local educational authorities owe to pupils.
Melling’s professional qualifications, but highlighted that the purpose of
knew of the importance of her assessment and advice to Pamela’s
Phelps, Anderton and Jarvis claimed damages for carelessness
Miss Melling making the assessment was to inform the decision how to
in failing to diagnose and/or deal with their dyslexia. G claimed
meet Pamela’s best interests, and that Pamela was both ‘very
damages for carelessness in failing to provide an education which
dependent’ on the assessment and ‘singularly vulnerable’ (at
would help him to overcome the effects of Duchenne muscular
802H–803A). Lord Clyde merely stated that there was no reason for
dystrophy.
distinguishing the case from the position that would have arisen if
Phelps was awarded £45,650 at trial, but this was overturned by
Pamela had made a contract with Miss Melling (at 807H–808G). These
the Court of Appeal. The Court of Appeal had struck out the claim of
subtle differences could prove crucial, since, for example, clearly one
Jarvis and refused Anderton an order for pre-action discovery, but had
can know that someone is at risk from one’s incompetence without
allowed G’s claim to go to trial.
acting with the purpose of benefiting that person. Phrases such as
Held The decisions of the Court of Appeal should be reversed in the cases of Phelps, Jarvis and Anderton, and the decision in G should be upheld. (1)
‘necessary nexus’ merely allow judges to avoid laying down which of these factors are crucial and/or sufficient.
Damages – non-pecuniary loss
Educational psychologists, even when advising local education authorities, could owe duties of care to the pupils they were
Heil v Rankin [2000] 2 WLR 1173, CA
assessing. (2)
Teachers could also owe duties to their pupils to take reasonable care to ensure that they received an appropriate
(3)
Facts
education.
The Court of Appeal considered in a range of co-joined cases how to
Local education authorities could be vicariously liable for
respond to the Law Commission’s recommendation that current
negligence by educational psychologists and teachers, and
guidelines for awards for non-pecuniary loss over £3,000 should be
might also owe direct common law duties to pupils in certain
increased by a factor of at least 1.5, but by no more than a factor of 2.
situations. (4)
Failure to diagnose and take appropriate action to deal with a congenital condition with the result that the child’s level of achievement was reduced and/or psychological damage was suffered could constitute ‘damage’ for the purpose of a claim.
Held Guideline figures for awards for non-pecuniary loss over £10,000 should be increased. Awards for the most catastrophic injuries should be increased by a third. The factor of increase should be tapered for
Comment
awards between £10,000 and the most catastrophic.
The Court of Appeal’s decision in Phelps was criticised in (1999) 27
Comment
SLR 61 and it is pleasing to see it reversed. Few would deny the power that teachers and other education professionals have over the life
It is difficult to decide how much compensation it is fair and
chances of children. Nonetheless, this decision of the House of Lords is
appropriate to award for pain, suffering and loss of amenity (non-
a radical and controversial step. Critics will suggest that the decision
pecuniary loss). In practice, judges rely heavily on the Judicial Studies
undermines self-responsibility for learning, and will predict that
Board Guidelines which provide suggested brackets for most types of
teachers will be harassed by a flood of vexatious claims. The self-
injuries (for example, the Court of Appeal in this case recommended
responsibility point will certainly have to be dealt with in cases (such as
that the bracket for catastrophic injuries such as quadriplegia and very
Jarvis) where a negligent failure to provide an appropriate education
severe brain damage should be £150,000 to £200,000). One important
may have contributed to later behaviour which led to exclusions and
function of these guidelines is to provide a sufficient degree of certainty
imprisonment. Such cases will require considerable judicial dexterity in
to allow efficient settlement of many claims. The Court of Appeal was
applying doctrines such as contributory negligence, illegality,
not asked to recommend a different approach or to reconsider the legal
remoteness, and ‘break in the chain of causation’.
principles behind the guidelines. Thus, it did not have to confront
One worrying feature of the reasoning in the House of Lords is Lord Slynn’s introduction of a new obfuscating concept: the ‘necessary
awkward questions such as: How can an award for loss of amenity to a person who is permanently unconscious be ‘corrective’?
nexus’. His Lordship explains (at 791F) that the phrase ‘assumption of
Three main reasons were given for the decision that awards for
responsibility’ merely means that a duty ‘is recognised or imposed by
the most serious injuries should be increased. First, there was evidence
the law’, and that this depends on ‘whether in the particular
of significant dissatisfaction within the legal profession and outside it
circumstances the necessary nexus has been shown’. Considering the
about the level of such awards. Secondly, although the brackets were
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updated using the retail price index, they had not kept pace with other
same in both cases – death. Hughes v Lord Advocate [1963] AC 837
indicators of the wealth of society, such as gross domestic product per
confirms that the precise manner in which an injury is caused does not
capita. Thirdly, the life expectancy of those suffering catastrophic
have to be reasonably foreseeable, but this does not mean that the
injuries has greatly increased and consequently many will feel pain and
manner in which harm is caused is irrelevant.
loss of amenity for longer. But, the Court of Appeal thought that the
The second interesting point made by Lord Hoffmann (at
Law Commission’s recommendation (Report on Damages for Personal
1091H) is that ‘“reasonably foreseeable” is not a fixed point on the
Injury: Non-Pecuniary Loss, 1999, para 5.8) was too generous because
scale of probability’. What this means is that a risk with the same
it paid insufficient attention to the effect that any increase would have
degree of likelihood may be reasonably foresseable in some contexts
on NHS finances and to the fact that many awards for pecuniary loss
but not in others. In particular, where there is some obvious risk which
now include specific sums for matters which might once have fallen
a reasonable defendant ought to have taken steps to eliminate, and it
within general non-pecuniary claims. These points reveal one of the
would have cost virtually nothing to eliminate the risk of the accident
many painful dilemmas which lie behind this area of the law. Those
which happened as well, then the injuries as a result of the accident
who have suffered catastrophic injury through negligence in the NHS
which happened are more likely to be found to be of a reasonably
can claim damages for pecuniary loss to cover optimum medical care
foreseeable type than if the risk of the accident which happened was
and the cost of innovative technology designed to reduce loss of
the only risk. An example may help to clarify this. If the only dangerous
amenity. This, however, both drains NHS resources (the NHS
feature of the abandoned boat was its weight, and it fell and crushed a
anticipated having to pay out £278m in damages during 1999–2000)
child, then it would be necessary to show that this type of injury was
and widens the gulf between the facilities available to victims of
reasonably foreseeable. But, in a case such as Jolley’s, where the boat
negligence and those available to the other 80% of people with similar
was both rotten and heavy, in Lord Hoffmann’s opinion it would be
disabilities.
easier to establish that injuries caused by it falling onto a child were of a reasonably foreseeable type. The justification for this opinion is not
Occupiers’ liability – remoteness
immediately obvious. The effect of it, however, is that where the question is whether the risk was sufficiently foreseeable for any duty to
Jolley v Sutton LBC [2000] 1 WLR 1082, HL
Facts A rotten boat was abandoned on land occupied by the defendant
be imposed at all then the courts are more likely to find for the defendant than where the question is whether the injuries caused by a breach of an acknowledged duty are too remote.
Negligence – duty – psychiatric injury
council. The claimant, a 14 year old boy, was severely injured when the boat fell on him after he propped it up to repair it. The trial judge
W v Essex County Council [2000] 2 WLR 601, HL
held that a reasonable council ought to have removed the boat sooner, and that the damage was not too remote. He made a reduction of 25% for the claimant’s contributory negligence. The Court of Appeal allowed an appeal on the basis that the damage was too remote.
Facts The claimants, who were parents of four children and approved specialist adolescent foster carers, told the defendants that they were
Held
not willing to accept a foster child who was suspected of being a sexual
The Court of Appeal should not have interfered with the trial judge’s
committing indecent assault and was under investigation for rape, with
opinion that the damage was of a type which was reasonably
the claimants. G abused the claimants’ children. The claimants and
foreseeable.
their children suffered psychiatric injuries. Hooper J struck out the
Comment The law on remoteness of damage is fairly clear: the type of injury which the claimant suffered must have been reasonably foreseeable. The only two points which make this decision noteworthy concern the
abuser. Despite this, the defendants placed G, who had admitted
parents’ claim for damages for negligence, and this was upheld by the Court of Appeal (see (1998) 25 SLR 62). (By the time the case reached the House of Lords, the defendants had conceded that claims by the four children should be allowed to proceed to trial.)
application of this test. Both points concern how injuries are divided
Held
into types.
The appeal was allowed. The claim based on the psychiatric injuries
First, Lord Hoffmann states (at 1091D) that:
suffered by the parents was arguable and should proceed to trial.
… what must have been foreseen is not the precise injury which occurred but injury of a given description … And the description is formulated by reference to the nature of the risk which ought to have been foreseen.
Comment Many readers of Frost v Chief Constable of South Yorkshire Police
The phrase ‘the nature of the risk’ is an important clue to understanding
[1999] 2 AC 455 (discussed under the name White v Chief Constable
the law in this area because it makes clear that how injury is caused
of South Yorkshire at (1999) 26 SLR 63) assumed that the House of
may be more important in grouping injuries into types than what injury
Lords had spoken out against further extension of the scope of the duty
is caused. For example, if a child dies as a result of contact with a
to take reasonable care not to cause psychiatric injuries. After all, in that
paraffin lamp negligently left in the street, then death by being burnt by
case, Lord Steyn adopted the twofold classification whereby a plaintiff
the lamp and death by being poisoned by drinking the paraffin would
who was within the range of foreseeable injury was owed a duty as a
be different types of injury even though the end result (the what) is the
primary victim and ‘all other victims, who suffer psychiatric harm, are
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secondary victims and must satisfy the control mechanisms laid down
sudden assault on the nervous system’ (per Lord Keith [1992] 1 AC 310,
in Alcock’s case’. He continued:
p 398) or a ‘sudden appreciation by sight or sound of a horrifying event,
In my view, the only sensible general strategy for the
which violently agitates the mind’ (per Lord Ackner [1992] 1 AC 310, p
courts is to say thus far and no further. The only prudent
401). It is hard to see how the parents in W witnessed anything which
course is to treat the pragmatic categories as reflected in
could cause this type of shock. But, perhaps the House of Lords has
authoritative decisions such as Alcock’s case and Page v
some sympathy with the Law Commission’s recommendation that this
Smith as settled for the time being but by and large to
particular limit on the scope of the duty should be abolished (Report on
leave any expansion or development in this corner of the
Liability for Psychiatric Illness, 1997, para 5.33).
law to Parliament.
It now seems, however, that the assumption that Frost heralded the end
Negligence – duty – psychiatric injury
for judicial expansion was wrong. In the W case, Lord Slynn shattered any certainty by stating (at 607F) that, ‘the categorisation of those claiming to be included as primary or secondary victims is not as I read
Waters v Commissioner of Police of the Metropolis [2000] 1 WLR 1607, HL
the cases finally closed. It is a concept still to be developed in different factual situations’. And Lord Steyn was amongst the four Law Lords who agreed with his speech.
Facts
So how could it be argued that the parents in the W case fitted
The claimant, a woman police officer, alleged that she had been raped
into one of the ‘pragmatic categories’? What Lord Slynn seems to have
by another officer. She claimed that after she reported this attack other
thought is that it was arguable that they could fit into either category.
officers victimised her, and that the Metropolitan Police (as her
Considering the parents’ position as primary victims he stated (at 607H):
‘employer’) carelessly failed to prevent this happening. She suffered
I do not consider that any of the cases to which your
psychiatric injury as a result. She appealed against the striking out of her
Lordships have been referred conclusively shows that, if
claim for damages for negligence.
the psychiatric injury suffered by the parents flows from a feeling that they brought the abuser and abused together or that they have a feeling of responsibility that they did not detect earlier what was happening, they are prevented from being primary victims.
Considering their position as secondary victims, he dealt with the
Held The appeal was allowed. The claim was arguable and should proceed to trial.
concern that by learning of the sexual abuse a few days after it occurred
Comment
the parents could not be said to have witnessed the ‘immediate
An employer owes a duty to take reasonable care to protect its
aftermath’ (at 608C):
employees from harm, including psychiatric injuries, during
… the concept of the ‘immediate aftermath’ of the
employment. This duty is commonly relied on by employees who
incident has to be assessed in the particular factual
allege that their employers have carelessly allowed them to be
situation. I am not persuaded that, in a situation like the
subjected to intolerable levels of stress: for example, Walker v
present, the parents must come across the abuser or the
Northumberland CC [1995] ICR 702. Given this general duty, the
abused ‘immediately’ after the sexual incident has
House of Lords thought that it was clearly arguable that (a) the
terminated.
Metropolitan Police’s relationship with the claimant was sufficiently
Acceptance into either category may be arguable, but should such
analogous to that between an employer and employee; (b) it was
arguments be accepted? There are two points against the argument that
reasonably foreseeable by an employer that a complaint such as that
those who are negligently made to feel responsible should qualify as
which the claimant made might lead to her mistreatment; and (c) that
primary victims. First, such a category is potentially large. In almost any
uncontrolled workplace bullying could cause physical or mental harm.
situation where a child is negligently killed or injured parents and
The main issue in dispute was whether it was clear that a duty of care
carers may feel responsible. Moreover, an attempt to limit the class by
should be denied on the basis that it was contrary to public policy or
excluding those who ‘irrationally’ felt responsible would have the
‘not fair, just and reasonable’ to impose one. On this, the House of
bizarre effect of making recovery easier for the parent who was in some
Lords thought that if the claim had been based solely on carelessness in
way responsible. Secondly, it is not clear why this class of victims
the investigation of the rape allegation, then Hill v Chief Constable of
(those who feel responsible) should be given privileged treatment. Is the
West Yorkshire [1989] AC 53 (no duty to take reasonable care in
case of a parent who bought the tickets for a child killed at
detecting criminals owed to a person in a broad class of possible
Hillsborough, or encouraged the child to attend, obviously stronger
victims) might have precluded a duty. But, that so far as the claim was
than that of other parents? Or, is the case of the parents in W obviously
based on carelessly failing to prevent other officers from victimising a
stronger than that of other parents who have suffered psychiatric injury
fellow employee, the same public policy concerns were less relevant.
after learning that their child has been abused? The argument for seeing
Lord Hutton discussed the policy concerns in most detail. He was
the parents as secondary victims seems stronger, and it certainly seems
willing to take seriously the amount of time and effort that would have
sensible to recognise that the ‘immediate aftermath’ of sexual abuse
to be diverted to answering the claimant’s allegations at trial. But, he
may be a very different time period than the ‘immediate aftermath’ of a
thought that this did not outweigh the claimant’s interest in securing a
collision. A difficulty, however, arises from the fact that secondary
remedy, and that the public interest also supported the truth about the
victims are normally expected to ‘witness’ the ‘immediate aftermath’.
allegations being brought to light.
This is connected with the rule from Alcock that there must be ‘a
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Administrative Law Administrative law update Advising on judicial review problems Appellate cures
(1993) 9 SLR 3; [1993] SLRYB 4 (1992) 6 SLR 3; [1992] SLRYB 5 (1995) 15 SLR 3; [1995] SLRYB 4
Archaeology, football and the purpose of judicial review
(1990) 1 SLR 4; [1991] SLRYB 3
Are we developing a dual system of administrative law?
(1993) 8 SLR 3; [1993] SLRYB 3
Behind ultra vires
(1994) 13 SLR 3 [1994] SLRYB 5
But you promised …
(1994) 11 SLR 3; [1994] SLRYB 3
But why?
(1995) 14 SLR 3; [1995] SLRYB 3
Duties to give reasons Injunctions and the public interest
(1991) 4 SLR 3; [1991] SLRYB 5 (1992) 7 SLR 3; [1992] SLRYB 6
Livestock and lateral thinking
(1995) 16 SLR 3; [1995] SLRYB 6
Natural justice and fettering: Europe tool
(1996) 17 SLR 3; [1996] SLRYB 3
Prerogative powers
(1993) 10 SLR 3; [1993] SLRYB 6
Procedural fairness only, please
(1994) 12 SLR 3; [1994] SLRYB 4
The Human Rights Bill: A new ground of judicial review
(1998) 23 SLR 3; [1998] SLRYB 2
What is wrong with judicial review? The Law Commission strikes again!
(1992) 5 SLR 3; [1992] SLRYB 3
Civil Liberties The Human Rights Act: minimalism or activism? The Human Rights Act and developments in counter-terrorism and State surveillance
(2000) 30 SLR 5; [2000] SLRYB 9 (2000) 31 SLR 5; [2000] SLRYB 13
Civil Litigation Anticipating Lord Woolf: some recent judicial developments
(1996) 17 SLR 6; [1996] SLRYB 5
Anton Piller orders
(1993) 10 SLR 6; [1993] SLRYB 7
Anton Piller orders – new legislation
(1998) 25 SLR 6; [1998] SLRYB 14
Blueprint for the future: Lord Woolf’s proposals for civil litigation
(1995) 16 SLR 8; [1995] SLRYB 12
Case management by the court: will it happen, will it work?
(1995) 15 SLR 5; [1995] SLRYB 11
County Court Rules Ord 17 r 11 – the automatic strike out sanction – a blunderbuss remedy for the evils of delay
(1997) 22 SLR 8; [1997] SLRYB 9
Dismissal for want of prosecution and striking out: part 1
(1994) 11 SLR 4; [1994] SLRYB 8
Dismissal for want of prosecution and striking out: part 2
(1994) 12 SLR 4; [1994] SLRYB 10
From ‘commencing’ to ‘starting’ – how to bring an action under the new Civil Procedure Rules Lord Woolf’s Final Report – the new landscape New developments in conditional fee agreements New developments in the reform of civil litigation Part 36 offers to settle and payments into court
(1999) 26 SLR 5; [1999] SLRYB 9 (1996) 19 SLR 3; [1996] SLRYB 9 (1999) 31 SLR 13; [1999] SLRYB 28 (1998) 23 SLR 5; [1998] SLRYB 9 (1999) 30 SLR 12; [1999] SLRYB 26
Past its ‘serve by’ date – extending the validity of the writ
(1998) 24 SLR 5; [1998] SLRYB 12
Resolution otherwise than by trial
(1999) 27 SLR 5; [1999] SLRYB 13
Service of originating process outside the jurisdiction
(1995) 14 SLR 5; [1995] SLRYB 9
Service of originating process within jurisdiction
(1994) 13 SLR 8 [1994] SLRYB 13
Striking out for delay under the new CPR 1998
(1999) 29 SLR 9; [1999] SLRYB 24
Striking out for want of prosecution – inferring prejudice from delay
(1997) 20 SLR 3; [1997] SLRYB 6
The Civil Evidence Act 1995 – new rules of court
(1997) 21 SLR 3; [1997] SLRYB 7
The hearsay rule in civil proceedings: the Civil Evidence Act 1995
(1996) 18 SLR 3; [1996] SLRYB 7
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Commercial Law A consumer’s charter for the 1990s? Connected lender liability – credit cards In the course of a business Late Payment of Commercial Debts (Interest) Act 1998 Merchantable quality Retention of title to goods – Romalpa restricted Sale of goods forming part of a bulk
(1990) 1 SLR 21 (1993) 9 SLR 8; [1993] SLRYB 11 (1999) 27 SLR 8; [1999] SLRYB 21 (1999) 26 SLR 10; [1999] SLRYB 19 (1991) 3 SLR 5; [1991] SLRYB 15 (1991) 2 SLR 4; [1991] SLRYB 13 (1995) 16 SLR 11; [1995] SLRYB 19
Sale of goods or contract for services?
(1998) 24 SLR 7; [1998] SLRYB 17
The Sale and Supply of Goods Act 1994
(1995) 14 SLR 8; [1995] SLRYB 17
Company Law Benefits and responsibilities Companies Act 1990: an overview Company exams
(1999) 26 SLR 12; [1999] SLRYB 28 (1990) 1 SLR 10; [1991] SLRYB 22 (1992) 6 SLR 8; [1992] SLRYB 15
Company law exams
(1993) 9 SLR 13; [1993] SLRYB 21
Directors in the dock
(1993) 8 SLR 8; [1993] SLRYB 19
Disagreement, debt and death Disqualification from corporate management
(1995) 16 SLR 14; [1995] SLRYB 29 (1991) 2 SLR 9; [1991] SLRYB 24
Examination technique
(1991) 3 SLR 6; [1991] SLRYB 26
Examination time again
(1998) 24 SLR 9; [1998] SLRYB 29
Examinations are here again Fiduciary duties again Financial (mis)dealings Incorporation of companies
(1999) 27 SLR 11; [1999] SLRYB 32 (1991) 4 SLR 5; [1991] SLRYB 27 (1996) 18 SLR 9; [1996] SLRYB 23 (1999) 28 SLR 10; [1999] SLRYB 34
Money
(1997) 21 SLR 9; [1997] SLRYB 27
Money matters
(1994) 11 SLR 7; [1994] SLRYB 21
‘Only connect’
(1994) 12 SLR 10; [1994] SLRYB 23
Paying for the benefits of incorporation
(1996) 19 SLR 10; [1996] SLRYB 26; (1997) 22 SLR 15; [1997] SLRYB 29
Privilege and responsibility Protecting minority shareholders
(1994) 13 SLR 15; [1994] SLRYB 24 (1992) 5 SLR 6; [1992] SLRYB 13
Protecting people from corporate harm
(1998) 23 SLR 12; [1998] SLRYB 25
Recent developments
(1995) 14 SLR 12; [1995] SLRYB 25
Shareholders and directors Shareholder agreements and the constitution of the company
(1997) 20 SLR 8; [1997] SLRYB 25 (1992) 7 SLR 10; [1992] SLRYB 18
Showing directors the red card
(1996) 17 SLR 11; [1996] SLRYB 21
So what have I let myself in for?
(1993) 10 SLR 10; [1993] SLRYB 23
The consequences of incorporation
(1995) 15 SLR 9; [1995] SLRYB 27
Conflict of Laws American rule – selecting approaches Comparing the proper law and applicable law Enactment of the Lugano and Donostia-San Sebastian Conventions The Lugano and Donostia-San Sebastian Conventions
188 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1995) 15 SLR 12; [1995] SLRYB 33 (1993) 9 SLR 16; [1993] SLRYB 26 (1992) 5 SLR 9; [1992] SLRYB 21 (1990) 1 SLR 15; [1991] SLRYB 31
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Constitutional Law Hint that Treaty of Union may contain ‘fundamental’ law
(2000) 29 SLR 14; [2000] SLRYB 37
Judicial review and the constitution after the Human Rights Act
(2000) 31 SLR 19; [2000] SLRYB 45
Labour’s freedom of information reforms
(1998) 24 SLR 12; [1998] SLRYB 36
Misuse of police powers and exclusion of evidence under PACE
(1991) 3 SLR 12; [1991] SLRYB 40
Police powers
(1992) 6 SLR 13; [1992] SLRYB 27
Protection for the European Convention on Human Rights as a British Bill of Rights Public order and freedom of assembly
(1997) 21 SLR 12; [1997] SLRYB 33 (1993) 9 SLR 21; [1993] SLRYB 37
Recent developments
(1995) 15 SLR 17; [1995] SLRYB 42
The debate on the Bill of Rights
(1994) 12 SLR 18; [1994] SLRYB 36
The European Convention on Human Rights and the Human Rights Act 1998
(1999) 27 SLR 13; [1999] SLRYB 38
The Human Rights Bill 1998
(1998) 23 SLR 15; [1998] SLRYB 33
The revised PACE codes
(1991) 4 SLR 10; [1991] SLRYB 43
The Scott Report and freedom of information
(1996) 18 SLR 12; [1996] SLRYB 30
The Wakeham proposals for the House of Lords: an overview and the government’s response
(2000) 30 SLR 15; [2000] SLRYB 40
Contract Law Contractual terms under European law Concurrence of duties in contract and tort Damages – the forgotten topic Exclusion clauses Forming a contract without offer and acceptance Making electronic contracts Misrepresentation: answering problem questions Mistake: answering problem questions Privity – the new legislation Promissory estoppel: some guidelines
(1995) 14 SLR 21; [1995] SLRYB 49 (1991) 4 SLR 13 (1996) 18 SLR 15; [1996] SLRYB 40 (1991) 3 SLR 16; [1991] SLRYB 53 (1994) 11 SLR 12; [1994] SLRYB 47 (2000) SLR31; [2000] SLRYB 56 (1995) 15 SLR 20; [1995] SLRYB 50 (1993) 9 SLR 25; [1993] SLRYB 46 (1999) 27 SLR 17; [1999] SLRYB 53 (1992) 6 SLR 17; [1992] SLRYB 37
Re Selectmove Ltd: issues on contract formation
(1995) 16 SLR 19; [1995] SLRYB 51
Terminological traps for contract students
(2000) 30 SLR 21; [2000] SLRYB 56
The doctrine of privity: proposals for reform
(1993) 8 SLR 18; [1993] SLRYB 45
The postal rule in the electronic age
(1992) 5 SLR 15; [1992] SLRYB 35
The role of consideration
(1999) 26 SLR 21; [1999] SLRYB 50
Undue influence: a likely examination topic?
(1994) 12 SLR 25; [1994] SLRYB 48
What is ‘total failure of consideriation’?
(2000) 29 SLR 19; [2000] SLRYB 50
Williams v Roffey: the death of Stilk v Myrick?
(1991) 2 SLR 17; [1991] SLRYB 52
Criminal Law Aiding and abetting Attempted crime
(1994) 12 SLR 28; [1994] SLRYB 55 (1991) 2 SLR 22; [1991] SLRYB 74
Corporate and vicarious liability
(2000) 30 SLR 24; [2000] SLRYB 61
Do not misstate the burden of proof
(1998) 24SLR 19; [1998] SLRYB 49
Mens rea required for assault
(1990) 1 SLR 28; [1991] SLRYB 72
Objective and subjective thoughts
(1995) 15 SLR 23; [1995] SLRYB 57
Provocation examined
(1996) 18 SLR 17; [1996] SLRYB 47
Sober and drunken mistakes
(1992) 6 SLR 22; [1992] SLRYB 51
Theft: an authorised act can be appropriation
(1991) 3 SLR 23; [1991] SLRYB 76
189 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Criminal Litigation An overview of the Crime and Disorder Act 1998
(1999) 26 SLR 27; [1999] SLRYB 72
An update
(1993) 10 SLR 28; [1993] SLRYB 65
Criminal Justice and Public Order Act 1994 – procedural and sentencing provisions
(1995) 14 SLR 25; [1995] SLRYB 69
Criminal Justice and Public Order Bill – changing tack
(1994) 13 SLR 30 [1994] SLRYB 69
Jury seances, material irregularities and the Gough test
(1995) 15 SLR 26; [1995] SLRYB 70
Mandatory and minimum sentences – a judicial straitjacket?
(1998) 23 SLR 24; [1998] SLRYB 60
No case submissions
(1999) 28 SLR 29; [1999] SLRYB 78
Pitfalls in sentencing of young offenders – aggravated vehicle-taking – Court of Appeal guidance
(1994) 11 SLR 19; [1994] SLRYB 66
Race, jury selection and perceptions of injustice
(1996) 17 SLR 21; [1996] SLRYB 58
Secure training centres – new lock ups for boys and girls
(1998) 24 SLR 23; [1998] SLRYB 62
The Criminal Justice (Mode of Trial) Bill: a recipe for miscarriages of justice?
(2000) 29 SLR 26; [2000] SLRYB 71
The impact of human rights on criminal litigation
(2000) 31 SLR 32; [2000] SLRYB 74
Thinking that the conviction is unsafe – the Criminal Appeal Act 1995
(1995) 16 SLR 30; [1995] SLRYB 73
Tipping the scales in favour of the prosecution – the Criminal Procedure and Investigations Act 1996 What makes the Court of Appeal think that a conviction is unsafe?
(1996) 19 SLR 28; [1996] SLRYB 62 (1999) 27 SLR 24; [1999] SLRYB 76
Employment Law Defences under s 1(3) of the EPA 1970
(2000) 30 SLR 32; [2000] SLRYB 80
Justification of indirect discrimination
(1993) 9 SLR 34; [1993] SLRYB 67
English Legal System A criminal miscarriage of justice, jury trials, videotaped evidence, rights of audience and civil court fees
(1997) 21 SLR 23; [1997] SLRYB 72
Access to justice, jurors, civil procedure, ICT and ELS, training the judiciary, law firms and lay prosecutors
(1999) 28 SLR 31; [1999] SLRYB 90
Bail, legal aid and court costs
(1995) 15 SLR 29; [1995] SLRYB 79
Civil litigation and criminal appeals
(1995) 14 SLR 28; [1995] SLRYB 77
Civil litigation and the Community Legal Service, the Crown Prosecution Service and the police, advocates’ liability for courtroom negligence, and the Criminal Cases Review Commission
(2000) 31 SLR 35; [2000] SLRYB 94
Criminal appeals, statutory interpretation, advocacy, legal aid and natural justice
(1996) 18 SLR 22; [1996] SLRYB 71
Judicial independence, silence at trial, ADR, and solicitor-advocates
(1996) 17 SLR 26; [1996] SLRYB 68
Jury trials, the CPR, technology and the legal system, solicitors, barristers, judges, and the criminal justice system
(2000) 30 SLR 34; [2000] SLRYB 90
Lay magistrates, conditional fees, ADR, civil litigation, venue for trial, the right to silence and the Criminal Cases Review Commission
(1998) 25 SLR 21; [1998] SLRYB 74
Legal aid, conditional fees, and access to the courts; the judiciary and the doctrine of precedent
(1998) 24 SLR 25; [1998] SLRYB 70
Modernising justice, the Human Rights Act, civil court fees and the criminal justice system Lord Woolf’s Final Report on the civil justice system, jury equity and the judiciary
(1999) 26 SLR 31; [1999] SLRYB 81 (1996) 19 SLR 32; [1996] SLRYB 72
No-win, no-fee arrangements, jury trials and Lord Woolf’s civil justice review
(1995) 16 SLR 33; [1995] SLRYB 81
Rights of advocacy, human rights, publicly funded law, court delays and impartial judges
(2000) 29 SLR 30; [2000] SLRYB 86
The Court of Appeal (Civil Division), the impact of the ECHR and magistrates’ courts
(1997) 20 SLR 23; [1997] SLRYB 70
190 • STUDENT LAW REVIEW • 2000 YEARBOOK
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The Court of Appeal Civil Division, the Criminal Cases Review Commission, the small claims court and the Crime and Disorder Bill
(1998) 23 SLR 26; [1998] SLRYB 65
The Crown Prosecution Service
(1994) 13 SLR 33 [1994] SLRYB 84
The legal profession
(1994) 11 SLR 26; [1994] SLRYB 80
The legal profession, the Stephen Lawrence Report, the Crown Prosecution Service and the independence of the judiciary
(1999) 27 SLR 26; [1999] SLRYB 85
The magistracy, judges and sentencing, civil procedure reform and civil court fees
(1997) 22 SLR 31; [1997] SLRYB 74
The right to silence
(1994) 12 SLR 36; [1994] SLRYB 81
Environmental Law Contaminated land liability
(1997) 21 SLR 26; [1997] SLRYB 79
Environment Act 1995
(1995) 16 SLR 36; [1995] SLRYB 85
Pesticide Litigation Pollution Prevention and Control Bill and IPPC Directive
(1992) 7 SLR 28; [1992] SLRYB 65 (1999) 27 SLR 31; [1999] SLRYB 96
The Docklands case
(1992) 6 SLR 27; [1992] SLRYB 64
The Sellafield leukaemia claims
(1992) 5 SLR 27; [1992] SLRYB 63
Equity & Trusts Conscience in the courts Dispositions of subsisting equitable interests under s 53(1)(c) LPA 1925 Formalities under s 53(1)(c) of the Law of Property Act 1925 Liability of strangers as constructive trustees Private purpose trusts – the ‘beneficiary’ principle The claim in rem The ‘given postulant’ enigma The law and economics of trustee investment
(1991) 4 SLR 24; [1991] SLRYB 85 (1996) 18 SLR 27; [1996] SLRYB 84 (2000) 30 SLR 42; [2000] SLRYB 107 (1993) 9 SLR 39; [1993] SLRYB 77 (1995) 15 SLR 35; [1995] SLRYB 95 (1992) 6 SLR 30; [1992] SLRYB 72 (1994) 12 SLR 41; [1994] SLRYB 95 (1991) 3 SLR 26; [1991] SLRYB 84
European Community Law Canvassing for business and consumer protection Contractual and non-contractual obligations Effect of EC directives Equity in the EC legal system Europe of XV: what next? European Community liability for contractual and non-contractual obligations European integration: the recent past, the present and an uncertain future European Union or European Community? Extended jurisdiction of the Court of First Instance Fisherman’s rights
(1995) 16 SLR 42; [1995] SLRYB 109 (1992) 5 SLR 37; [1992] SLRYB 82 (1994) 13 SLR 44; [1994] SLRYB 110 (1993) 9 SLR 44; [1993] SLRYB 89 (1995) 14 SLR 33; [1995] SLRYB 105 (1990) 1 SLR 35; [1991] SLRYB 90 (1996) 17 SLR 34; [1996] SLRYB 96 (1994) 12 SLR 49 (1994) 12 SLR 49 (1991) 4 SLR 26; [1991] SLRYB 97
Francovich: Member State liability for damages – first steps
(1995) 14 SLR 35; [1995] SLRYB 107
Freedom to trade versus freedom of speech
1999) 27 SLR 41; [1999] SLRYB 114
Legal system and Community policies
(2000) 31 SLR 46; [2000] SLRYB 119
Maastricht and the European Constitutionalism
(1993) 8 SLR 34; [1993] SLRYB 88
Part I: Towards a Political Union
(1992) 6 SLR 36; [1992] SLRYB 88
Part II: Towards an Economic and Monetary Union
(1992) 7 SLR 33; [1992] SLRYB 88
Product liability according to European Community law Rights, policies and relationships: reading Community case law
(1991) 2 SLR 27; [1991] SLRYB 91 (1998) 25 SLR 37; [1998] SLRYB 101
191 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Some thoughts on examinations in law
(1991) 3 SLR 28; [1991] SLRYB 95
State liability: Factortame in the divisional court and other recent developments
(1997) 22 SLR 40; [1997] SLRYB 97
State liability: the operation of the Francovitch principle
(1996) 18 SLR 32; [1996] SLRYB 98
Students’ rights in the European Community
(1994) 12 SLR 46; [1994] SLRYB 107
The Treaty of Amsterdam on European Union
(1998) 23 SLR 38; [1998] SLRYB 98
Use and abuse of preliminary proceedings under Art 177 of the EEC Treaty
(1993) 10 SLR 34; [1993] SLRYB 91
Evidence Children in criminal proceedings Heresy! Hearsay in civil proceedings The absolute nature of legal professional privilege
(1992) 6 SLR 44; [1992] SLRYB 101 (1991) 3 SLR 34; [1991] SLRYB 110 (1998) 24 SLR 42; [1998] SLRYB 112
The interpretation of a DNA profile
(1995) 15 SLR 45; [1995] SLRYB 122
The production of a DNA profile
(1995) 14 SLR 40; [1995] SLRYB 120
The protection of ‘without prejudice’ statements
(2000) 30 SLR 50; [2000] SLRYB 127
Family Law A reforming agenda
(2000) 30 SLR 46; [2000] SLRYB 136
Adoption – now and in the future
(1999) 27 SLR 47; [1999] SLRYB 129
Children Act principles
(1995) 14 SLR 45; [1995] SLRYB 133
Children looked after and away from home – is protection adequate?
(1998) 23 SLR 45; [1998] SLRYB 117
Is marriage redundant?
(1992) 6 SLR 46; [1992] SLRYB 111
Same sex couples – the times they are a-changing?
(2000) 29 SLR 46; [2000] SLRYB 134
Summer snapshots
(2000) 31 SLR 56; [2000] SLRYB 138
Taken without consent
(1998) 24SLR 44; [1998] SLRYB 120
The Children Act 1989 – a summary
(1990) 1 SLR 46; [1991] SLRYB 120
The Children Act 1989: rolling back the state?
(1991) 3 SLR 36; [1991] SLRYB 122
The Child Support Act 1991
(1993) 9 SLR 54; [1993] SLRYB 110
The Family Law Act 1996
(1996) 19 SLR 52; [1996] SLRYB 121
The Family Law Act 1996 – implementation schedule
(1997) 22 SLR 47; [1997] SLRYB 116
The public/private split under the Children Act 1989
(1993) 10 SLR 43; [1993] SLRYB 115
What’s new in family law?
(1998) 25 SLR 44; [1998] SLRYB 122
What price family values?
(1996) 17 SLR 41; [1996] SLRYB 119
Where now for divorce?
(1999) 28 SLR 50; [1999] SLRYB 131
General Preparing for the LLB examinations: Part 1
(1990) 1 SLR 50; [1991] SLRYB 199
Preparing for the LLB examinations: Part 2
(1991) 2 SLR 37; [1991] SLRYB 200
Intellectual Property Law A European Community patent system? Biotechnology inventions: the draft directive Computer Misuse Act 1990 Copyright: ‘Look and Feel’ of computer programs Copyright on the Internet (reprise)
(2000) SLR 58; [2000] SLRYB 145 (1995) 14 SLR 46; [1995] SLRYB 137 (1990) 1 SLR 13 (1993) 8 SLR 46; [1993] SLRYB 121 (1997) 21 SLR 41; [1997] SLRYB 126
Design protection: the EC fudges the spare parts question
(1999) 26 SLR 47; [1999] SLRYB 135
Diplomatic conference considers changes to international copyright law
(1997) 20 SLR 39; [1997] SLRYB 122
European patents for computer programs: the door opens
(1999) 28 SLR 52; [1999] SLRYB 139
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Fair dealing with newspaper cuttings
(1999) 27 SLR 49; [1999] SLRYB 137
Patent protection for computer programs
(1994) 11 SLR 42; [1994] SLRYB 132
Preparing for the Single Market
(1992) 5 SLR 50; [1992] SLRYB 118
Protection of databases: the proposed EC directive
(1996) 17 SLR 43; [1996] SLRYB 126
Registration of non-distinctive trade marks
(2000) 29 SLR 48; [2000] SLRYB 141
Review of recent cases
(1993) 10 SLR 45; [1993] SLRYB 123
The Madrid Protocol: international trademarks come to the UK
(1995) 15 SLR 52; [1995] SLRYB 139
The new law on trademarks
(1994) 12 SLR 56; [1994] SLRYB 134
The scope of the patent monopoly: construction of patent claims
(1995) 16 SLR 51; [1995] SLRYB 141
The technology transfer block exemption
(1996) 18 SLR 44; [1996] SLRYB 128
The term of copyright protection
(1994) 13 SLR 53 [1994] SLRYB 136
Towards a Community patent system?
(1998) 23 SLR 48; [1998] SLRYB 126
Trademarks and the Internet
(1997) 22 SLR 54; [1997] SLRYB 128
Trademarks: the directive grows up
(1998) 24 SLR 46; [1998] SLRYB 128
When can a patent be amended?
(2000) 30 SLR 54; [2000] SLRYB 1430
International Trade Law Performance guarantees and the fraud exception
(1999) 26 SLR 49; [1999] SLRYB 142
Problem of late payments in international contracts
(1998) 23 SLR 50; [1998] SLRYB 132
The Bolero Project – the International Chamber of Commerce’s electronic bill of lading project
(2000) 30 SLR 56; [2000] SLRYB 151
The new EC directive on electronic signatures and its impact on international commerce
(2000) 29 SLR 50; [2000] SLRYB 148
The new UNCITRAL Convention on Independent Guarantees
(1997) 20 SLR 44; [1997] SLRYB 132
Jurisprudence Adam Smith as jurist
(1991) 2 SLR 44; [1991] SLRYB 141
American critical legal studies
(1993) 9 SLR 63; [1993] SLRYB 135
‘Born free, and everwhere he is in chains’
(1996) 19 SLR 62; [1996] SLRYB 154
Cardozo and the nature of the judicial process
(1997) 21 SLR 46; [1997] SLRYB 147
Dean Pound’s theory of interests
(2000) 31 SLR 63; [2000] SLRYB 166
Dworkin and rights at the edges of life
(1995) 16 SLR 58; [1995] SLRYB 156
Feminist jurisprudence
(1995) 15 SLR 54; [1995] SLRYB 152
Finnis and Natural Law
(1994) 13 SLR 56 [1994] SLRYB 145
First steps in jurisprudence
(1991) 4 SLR 39; [1991] SLRYB 145
Hohfeld and the analysis of rights
(1995) 14 SLR 49; [1995] SLRYB 150
John Austin: law as command
(1993) 10 SLR 48; [1993] SLRYB 137
John Chipman Gray – precursor of American Realism
(1996) 17 SLR 51; [1996] SLRYB 149
John Stuart Mill on Liberty and the Law
(2000) 29 SLR 54; [2000] SLRYB 160
Judge Posner on pragmatic jurisprudence
(2000) 30 SLR 60; [2000] SLRYB 163
Justice Holmes and Legal Realism
(1998) 24 SLR 52; [1998] SLRYB 145
Karl Llewellyn and Legal Realist Doctrine
(1999) 28 SLR 56; [1999] SLRYB 159
Law and morals Law in the Minimal State Logic and Law Maine: Law as an historical process
(1992) 5 SLR 57; [1992] SLRYB 132 (1999) 26 SLR 51; [1999] SLRYB 152 (1992) 7 SLR 51; [1992] SLRYB 136 (1994) 11 SLR 44; [1994] SLRYB 140
Marxism and Law
(1991) 3 SLR 40; [1991] SLRYB 143
Rights and duties
(1990) 1 SLR 53; [1991] SLRYB 139
193 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Roberto Unger and Critical Legal Studies
(1999) 27 SLR 54; [1999] SLRYB 156
Savigny, the Volksgeist and historical jurisprudence
(1998) 23 SLR 54; [1998] SLRYB 142
The Angelic Doctor on The Nature of Law and the Law of Nature
(1998) 25 SLR 50; [1998] SLRYB 148
The Case of the Speluncean Explorers
(1996) 18 SLR 54; [1996] SLRYB 151
The greatest happiness of the greatest number
(1993) 8 SLR 51; [1993] SLRYB 132
The Hart-Fuller debate
(1992) 6 SLR 55; [1992] SLRYB 134
The Kantian Categorical Imperative
(1997) 22 SLR 62; [1997] SLRYB 150
The sad tale of King Rex I
(1997) 20 SLR 47; [1997] SLRYB 147
Weber and the legal order
(1994) 12 SLR 60; [1994] SLRYB 142
Landlord & Tenant Law Age shall not wither it
(1991) 2 SLR 49; [1991] SLRYB 166
Let it be?
(1991) 1 SLR 62; [1991] SLRYB 165
New and fundamental developments
(1990) 1 SLR 24; [1991] SLRYB 61
Land Law Co-ownership: the end of the trust for sale and strict settelments Constructive trusts, co-ownership and third parties Examining leasehold covenants Leases and licences
(1996) 19 SLR 68; [1996] SLRYB 160 (1991) 3 SLR 45; [1991] SLRYB 157 (1995) 15 SLR 59; [1995] SLRYB 160 (1992) 6 SLR 58; [1992] SLRYB 144
Mortgagees of legal estates and their right to possession; co-ownership under TLATA 1996
(1999) 27 SLR 57; [1999] SLRYB 163
Reforming the law: the diverse activities of the Law Commission
(1994) 12 SLR 63; [1994] SLRYB 148
The Landlord and Tenant (Covenants) Act 1995
(1996) 18 SLR 59; [1996] SLRYB 159
Medical Law Legislative responses to the recommendations of the Warnock Committee
(1991) 4 SLR 52
Practice and Procedure Exchange of witness statements
(1993) 9 SLR 72; [1993] SLRYB 160
Recent developments
(1990) 1 SLR 64; [1991] SLRYB 173
Recent developments in civil procedure
(1991) 4 SLR 56; [1991] SLRYB 175
Typical High Court contested writ action
(1992) 5 SLR 67; [1992] SLRYB 160
The Road Traffic Act 1991: penalty points and disqualification
(1992) 7 SLR 60; [1992] SLRYB 164
The Criminal Justice Act 1991: Court of Appeal guidance
(1993) 8 SLR 61; [1993] SLRYB 158
Unit fines
(1992) 6 SLR 69; [1992] SLRYB 161
Revenue Law Adventurous trading
(1995) 15 SLR 62; [1995] SLRYB 171
Anti avoidance and the blunt instrument of legislation
(1998) 24 SLR 58; [1998] SLRYB 161
Benefits in kind Capital gains tax – ascertaining the date of disposal Capital or revenue?
194 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1991) 3 SLR 55; [1991] SLRYB 184 (1997) 21 SLR 53; [1997] SLRYB 163 (1992) 6 SLR 71; [1992] SLRYB 167
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Old law revisited – the distinction between Sched E and Sched D; and the deductibility of Sched E expenses Substance over form
(1994) 12 SLR 68; [1994] SLRYB 166 (1996) 18 SLR 60; [1996] SLRYB 168
Sport and the Law Non-sporting judicial review: jurisdiction
(1991) 4 SLR 61
Tort Law Australian Law Reform Commission and tort Criminal conduct and the law of tort Difficulties with Murphy v Brentwood Foreseeability, strict liability and the rule in Rylands v Fletcher Murphy v Brentwood DC – unfinished business Negligent omissions, economic loss and the limits of Hedley Byrne
(1993) 9 SLR 20; [1993] SLRYB 34 (1991) 4 SLR 62; [1991] SLRYB 194 (1992) 7 SLR 65; [1992] SLRYB 178 (1994) 12 SLR 70; [1994] SLRYB 172 (1991) 3 SLR 57; [1991] SLRYB 192 (1995) 15 SLR 66; [1995] SLRYB 176
Nervous shock, limitation of actions and public policy
(1992) 5 SLR 72; [1992] SLRYB 173
Nervous shock after Hillsborough
(1992) 6 SLR 74; [1992] SLRYB 175
The demise of Anns v Merton Borough Council
(1990) 1 SLR 72; [1991] SLRYB 191
195 • STUDENT LAW REVIEW • 2000 YEARBOOK
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C A S E S
A A v DPP [1992] Crim LR 34 A v The United Kingdom (100/1997/884/1096) 23 September 1998, ECHR A/S Iverans Rederei v KG MS Holstencruiser (The ‘Holstencruiser’) [1992] 2 Lloyd’s Rep 378 AB v South West Water Services Ltd (1992) The Independent, 15 May
(1992) 6 SLR 24; [1992] SLRYB 55 (1999) 26 SLR 46; [1999] SLRYB 133 (1993) 8 SLR 49; [1993] SLRYB 127 (1992) 7 SLR 29; [1992] SLRYB 69
Abbey National Building Society v Cann [1990] 1 All ER 1085, HL
(1990) 1 SLR 58; [1991] SLRYB 158
Abbey National plc v Moss (1993) The Times Law Rep, 30 November, CA
(1994) 13 SLR 58 [1994] SLRYB 154
Abrahams v Trustee in Bankruptcy of Abrahams (1999) The Times 26, July, HC
(2000) 29 SLR 36; [2000] SLRYB 110
Adoulaye v Renault SA (Case C-218/98) (1999) 16 September
(2000) 29 SLR 42; [2000] SLRYB 121
Affish BV v Dutch National Department for the Inspection of Livestock and Meats (not yet reported)
(1998) 23 SLR 41; [1998] SLRYB 104
Afford v Till [1990] 35 EG 56, CA AG of Trinidad and Tobago [1994] NLJ 1549 AG v Associated Newspapers Ltd and Others (1992) NLJ 1647
(1991) 2 SLR 19; [1991] SLRYB 64 (1995) 14 SLR 20; [1995] SLRYB 46 (1993) 8 SLR 16; [1993] SLRYB 41
AG v BBC; Same v Hat Trick Productions Ltd (1997) The Times, 26 July
(1997) 22 SLR 20; [1997] SLRYB 41
AG v Blake [1996] 3 All ER 903
(1997) 20 SLR 29; [1997] SLRYB 88
AG v Blake (1997) The Times, 22 December, CA AG v Blake (2000) 27 July, HL
(1998) 24 SLR 33; [1998] SLRYB 91 (2000) 31 SLR 43; [2000] SLRYB 114
AG v Newspaper Publishing plc and Others (1997) The Times, 2 May, CA
(1997) 22 SLR 18; [1997] SLRYB 38
Agricultural Mortgage Corporation plc v Woodward and Another (1994) The Times, 22 June
(1994) 13 SLR 39 [1994] SLRYB 104
Agrosin Pte Ltd v Highway Shipping Co Ltd, ‘The Mata K’ [1998] 2 Lloyd’s Rep 614
(1999) 27 SLR 52; [1999] SLRYB 145
Air India v Balabel [1993] 30 EG 90
(1993) 10 SLR 59; [1993] SLRYB 156
Airbus Industrie GIE v Patel and Others (1996) The Times, 12 August CA
(1997) 20 SLR 46; [1997] SLRYB 133
Airbus Industrie GIE v Patel and Others [1998] 1 Lloyd’s Rep 631, HL
(1998) 25 SLR 47; [1998] SLRYB 137
Aitken v South Hams District Council (1994) The Times, 8 July, HL AKZO Chemie v Commission (1991) The Times European Law Rep, 7 October Alfred McAlpine Construction Limited v Panatown Limited (2000) The Times, 15 August, HL Al-Mehdawhi v Secretary of State for the Home Office [1990] AC 876, HL Al-Nakib Investments (Jersey) Ltd and Another v Longcroft and others [1990] 3 All ER 321
(1994) 13 SLR 35 [1994] SLRYB 91 (1992) 5 SLR 40; [1992] SLRYB 91 (2000) 31 SLR 28; [2000] SLRYB 49 (1991) 2 SLR 2; [1991] SLRYB 8 (1991) 2 SLR 60; [1991] SLRYB 196
Albany Home Loans v Massey [1997] 2 All ER 609 CA
(1997) 22 SLR 60; [1997] SLRYB 159
Allan v Inland Revenue Commissioners, Cullen v Inland Revenue Commissioners [1994] BTC 417
(1995) 14 SLR 55; [1995] SLRYB 173
Allen v Redbridge LBC [1994] 1 WLR 139 Divisional Court
(1994) 12 SLR 8
Alsop Wilkinson v Neary and Others (1994) The Times, 4 November
(1995) 14 SLR 32; [1995] SLRYB 99
Alvin v Harris (1991) 62 P & CR 10 Scotland, HL
(1992) 6 SLR 60; [1992] SLRYB 147
Amarjee v Barrowfen Properties Limited [1983] 30 EG 98 Antoniades v Wong [1997] 2 BCLC 419, CA Apple Corporation Ltd v Apple Computer Inc (1991) The Times, 10 April Arab Bank plc v Merchantile Holdings Ltd [1994] 2 All ER 74 Armhouse Lee Ltd v Chappell and Another (1996) The Times, 7 August, CA Armitage v Nurse and Others [1997] 3 WLR 1046, CA
(1994) 11 SLR 52 (1998) 23 SLR 14; [1998] SLRYB 28 (1991) 4 SLR 32; [1991] SLRYB 117 (1994) 13 SLR 58; [1994] SLRYB 154 (1996) 19 SLR 19; [1996] SLRYB 44 (1998) 23 SLR 34; [1998] SLRYB 88
Armstrong & Holmes Ltd v Holmes (1993) TLR 345
(1993) 10 SLR 54; [1993] SLRYB 148; (1994) 11 SLR 48; [1994] SLRYB 151
Arthur JS Hall & Co (A Firm) v Simons [2000] 3 WLR 543, HL
(2000) 31 SLR 60; [2000] SLRYB 183
Arthur JS Hall & Co v Simons and Other Appeals (2000) The Times, 21 July, HL
(2000) 31 SLR 36; [2000] SLRYB 95
197 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Artistic Upholstery Ltd v Art Forma (Furniture) Ltd (1999) The Times, 21 September, CA Ashley Guarantee plc v Zacaria [1993] 1 WLR 62 CA
(2000) 29 SLR 38; [2000] SLRYB 112 (1993) 9 SLR 67; [1993] SLRYB 144
Ashmore and Others v Corporation of Lloyd’s (No 2) (1992) The Times, 17 July
(1992) 7 SLR 20; [1992] SLRYB 40
Aslan v Berkeley House Properties [1990] 37 EG 81 CA
(1991) 2 SLR 20; [1991] SLRYB 65
Aslan v Murphy (Nos 1and 2) CA
(1990) 1 SLR 26; [1991] SLRYB 63
Associated British Ports v C H Bailey plc [1990] 2 WLR 812, HL
(1991) 2 SLR 19; [1991] SLRYB 64
Association of Certified Public Accountants of Britain v Secretary of State for Trade and Industry [1997] 2 BCLC 307
(1998) 23 SLR 12; [1998] SLRYB 25
AT & T Istel Ltd v Tully (1991) The Times, 18 November, CA
(1992) 5 SLR 44; [1992] SLRYB 103
Atari Corporation (UK) Ltd v The Electronics Boutique Stores (UK) Ltd (1997) The Times, 25 July, CA
(1997) 22 SLR 14; [1997] SLRYB 23
Atlanta v BEF [1996] 1 CMLR 575; [1996] All ER (EC) 31
(1996) 19 SLR 46; [1996] SLRYB 107
Attorney General for Hong Kong v Reid and Others (1983) The Times Law Rep, 12 November PC Attorney General v Hayward (1995) The Times, 20 November CA Attorney General v Hislop [1991] 2 WLR 219 Attorney General v Sport Newspapers Ltd and Others (1991) The Times, 6 June
(1994) 11 SLR 32; [1994] SLRYB 101 (1996) 17 SLR 38; [1996] SLRYB 112 (1991) 2 SLR 15; [1991] SLRYB 47 (1991) 4 SLR 12; [1991] SLRYB 49
Attorney General’s Reference (No 3 of 1994) (1995) The Times, 29 November CA
(1996) 17 SLR 19; [1996] SLRYB 48
Attorney General’s Reference (No 3 of 1994) (1997) The Times, 25 July, HL
(1997) 22 SLR 25; [1997] SLRYB 59
Attorney General’s Reference No 1 of 1991 [1992] 3 All ER 897, CA
(1993) 8 SLR 24; [1993] SLRYB 62
Attorney General’s Reference No 2 of 1992 [1993] 4 All ER 683, CA
(1994) 11 SLR 18; [1994] SLRYB 58
Attorney General’s Reference No 2 of 1994 (1994) The Times, 4 August, CA
(1994) 13 SLR 37 [1994] SLRYB 92
Attorney General’s Reference No 3 of 1992 (1993) The Times, 18 November, CA
(1994) 11 SLR 16; [1994] SLRYB 57
Attorney General’s Reference No 3 of 1998 [1999] 3 All ER 40, CA
(1999) 28 SLR 24; [1999] SLRYB 66
Attorney-General’s Reference No 1 of 1994 (1995) The Times, 26 January, CA Atwood v Anduff Car Wash Limited [1997] BTC 454 Austin v DPP; Blake v DPP (1992) The Times, 3 November
(1995) 15 SLR 33; [1995] SLRYB 91 (1998) 23 SLR 60; [1998] SLRYB 164 (1993) 8 SLR 39; [1993] SLRYB 102
B B (A Minor) v DPP [1999] 3 WLR 116, DC
(1999) 28 SLR 25; [1999] SLRYB 67
B (A Minor) v Director of Public Prosecutions (2000) 1 All ER 833, HL
(2000) 30 SLR 27; [2000] SLRYB 66
B v B (1992) 2 FLR 327 B v B (Consent Order: Variation) [1995] 1 FLR 9 Baird v Baird [1990] 2 WLR 1412 PC Bairstow Eves (Securities) Ltd v Ripley (1992) 10 June, CA
(1993) 8 SLR 42; [1993] SLRYB 117 (1995) 15 SLR 50; [1995] SLRYB 134 (1990) 1 SLR 34; [1991] SLRYB 87 (1992) 7 SLR 58; [1992] SLRYB 157
Balding v Lew Ways Ltd (1995) The Times, 9 March
(1995) 15 SLR 7; [1995] SLRYB 23
Balfour Beatty Construction (Scotland) Ltd v Scottish Power plc (1994) The Times, 23 March, HL
(1994) 13 SLR 24 [1994] SLRYB 52
Balfour v Foreign and Commonwealth Office (1993) The Times, 9 February, EAT Balli Trading Limited v Afalona Shipping Co Ltd (The ‘Coral’) [1992] LMLN 333, CA Banco Exterior Internacional SA v Thomas [1997] 1 All ER 46 CA; [1997] WLR 221, CA Banco Exterior Internacional v Mann [1995] 1 All ER 936, CA
(1993) 9 SLR 52; [1993] SLRYB 105; CA (1994) 11 SLR 10; [1994] SLRYB 41 (1993) 8 SLR 49; [1993] SLRYB 127 (1997) 21 SLR 15, 50; [1997] SLRYB 44, 156 (1995) 16 SLR 64; [1995] SLRYB 165
Banco Santander SA v Bayfern Ltd and Others (2000) 25 February, CA
(2000) 30 SLR 58; [2000] SLRYB 155
Banco Santander SA v Bayfern Limited and Others, Judgment of 9 June 1999, HC
(1999) 28 SLR 54; [1999] SLRYB 147
Bank of Baroda v Rayerel and Others (1995) The Times, 19 January, CA
(1995) 15 SLR 40; [1995] SLRYB 101
198 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele (2000) The Times, 22 June, CA
(2000) 31 SLR 46; [2000] SLRYB 117
Bank of Credit and Commerce International (in liquidation) (‘BCCI’) v Ali and Others [1999] 2 All ER 1005 Bank of Ireland Home Mortgages v South Lodge Developments [1996] 14 EG 92
(1999) 28 SLR 19; [1999] SLRYB 57 (1996) 19 SLR 66; [1996] SLRYB 166
Banque Paribas v Cargill International [1992] 1 LL LR 96
(1992) 7 SLR 14; [1992] SLRYB 24; CA (1993) 8 SLR 10; [1993] SLRYB 29
Barakot Ltd v Epiette Ltd [1997] BCLC 303
(1997) 22 SLR 16; [1997] SLRYB 29
Barakot Ltd v Epiette Ltd [1998] 1 BCLC 283
(1999) 26 SLR 13; [1999] SLRYB 29
Barber v Guardian Royal Exchange Assurance Group [1990] 2 CMLR 513
(1990) 1 SLR 41; [1991] SLRYB 102
Barber v NWS Bank (1995) The Times, 27 November, CA
(1996) 17 SLR 8; [1996] SLRYB 14
Barclays Bank plc v Boulter and Boulter (1999) The Times, 21 October, HL
(2000) 29 SLR 38; [2000] SLRYB 112
Barclays Bank v Coleman and Another (2000) 1 All ER 385
(2000) 30 SLR 64; [2000] SLRYB 113 (2000) 29 SLR 41; [2000] SLRYB 172
Barclays Bank plc v Fairclough Building Ltd (1994) The Times, 11 May, CA
(1994) 13 SLR 24 [1994] SLRYB 53
Barclays Bank plc v Glasgow City Council [1994] 4 All ER 865, CA
(1995) 15 SLR 14; [1995] SLRYB 38
Barclays Bank plc v Homan (1992) The Independent, 5 November, CA
(1993) 9 SLR 20; [1993] SLRYB 32
Barclays Bank plc v Kennedy [1989] 58 P & CR 221
(1990) 1 SLR 27; [1991] SLRYB 63
Barclays Bank plc v Khaira [1992] 1 WLR 623 Barclays Bank plc v O’Brien [1992] 3 All ER 593 CA; [1993] 4 All ER 417,
(1993) 8 SLR 54; [1993] SLRYB 141 HL CA (1993) 8 SLR 54; (1993) 9 SLR 28; [1993] SLRYB 49, 141; HL (1994) 11 SLR 13, 47; [1994] SLRYB 50,150
Barclays Bank plc v RBS Advanta (1996) The Times, 8 February
(1996) 18 SLR 46; [1996] SLRYB 131
Barclays Bank plc v Schwarz (1995) The Times, 2 August
(1995) 16 SLR 20; [1995] SLRYB 54
Barclays Bank v Thompson {1996) NLJ, 6 December, CA
(1997) 20 SLR 51; [1997] SLRYB 155
Barlow Clowes International Ltd (in liquidation) and Others v Vaughan and Others [1992] 4 All ER 22, CA
(1993) 8 SLR 29; [1993] SLRYB 81
Barrett v Enfield LBC [1999] 3 WLR 79, HL
(1999) 28 SLR 61; [1999] SLRYB 181
Barrett v Enfield London Borough Council [1998] QB 367, CA
(1998) 25 SLR 62; [1998] SLRYB 175
Barrett v Powell [1998] BTC 59, HC
(1998) 24 SLR 60; [1998] SLRYB 165
Behzadi v Shaftesbury Hotels Ltd [1990] NLJ 1385, CA Bence Graphics International Ltd v Fasson UK Ltd [1997] 3 WLR 205, CA Bence Graphics v Fasson UK [1996] NLJ 1577, CA Bennett v IRC [1995] BTC 8003 Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464 Berrisford (appellant) v Woodard Schools (Midland Division) Ltd (respondent) [1991] IRLR 247, EAT Beune [1995] IRLR 103
(1991) 3 SLR 20; [1991] SLRYB 66 (1997) 22 SLR 21; [1997] SLRYB 48 (1997) 20 SLR 6; [1997] SLRYB 14 (1995) 16 SLR 66; [1995] SLRYB 174 (1995) 14 SLR 22; [1995] SLRYB 53 (1991) 4 SLR 43 (1995) 15 SLR 44; [1995] SLRYB 114
Bhimji v Chatwani (Nos 1 and 2) (1991) The Independent, 28 January
(1991) 2 SLR 34; [1991] SLRYB 114
Bhojwani and Another v Kingsley Investment Trust Limited [1992] 39 EG 138
(1993) 8 SLR 60; [1993] SLRYB 152
Billingham v John [1998] BTC 18, HC, CD
(1998) 24 SLR 60; [1998] SLRYB 165
Billson and Others v Residential Apartments Limited (1991) The Times, 13 December, HL
CA (1991) 3 SLR 47; (1991) 3 SLR 19; [1991] SLRYB 66; (1991) 4 SLR 48; HL (1992) 5 SLR 19; [1992] SLRYB 43
Birmingham Midshires Mortgage Services v Sabherwal (Sudesh) (1999) 17 December, CA
(2000) 30 SLR 64; [2000] SLRYB 172
Bishop v Plumley and another (1990) The Independent, 29 June, CA Bishopsgate Investment Management Ltd v Homan and Others (1994) The Times, 14 July, CA Blackely and another v DPP (1991) The Times, 12 June, QBD Blue Circle Industries Ltd v Ministry of Defence (1996) The Times, 11 December
(1990) 1 SLR 70 (1994) 13 SLR 42 [1994] SLRYB 104 (1991) 4 SLR 23; [1991] SLRYB 82 (1997) 20 SLR 26; [1997] SLRYB 82
199 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Boateng v Gracegrove Estates (unreported) 1 January 1997, CA Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, HL Borealis Advising Bank v Stargas Ltd and Others (1998) The Times, 14 September, CA
(1998) 23 SLR 57; [1998] SLRYB 153 (1998) 23 SLR 43, 61; [1998] SLRYB 113, 169 (1999) 27 SLR 51; [1999] SLRYB 144
Boscawen and Others v Bajwa and Others; Abbey National plc v Boscawen and Others [1995] All ER 769, CA Bostock v Bryant (1990) The Times, 29 June, CA
(1996) 18 SLR 31; [1996] SLRYB 90 (1990) 1 SLR 62; (1991) 4 SLR 46; [1991] SLRYB 162, 167
Bovis Construction (Scotland) Ltd v Whatlings Construction Ltd (1995) The Times, 19 October
(1996) 17 SLR 17; [1996] SLRYB 42
Box and Others v Barclays Bank plc [1998] All ER 108
(1998) 25 SLR 30; [1998] SLRYB 94
Brannigan and McBride v United Kingdom (1993) The Times, 26 May
(1993) 10 SLR 18; [1993] SLRYB 43
Brasserie du P∏cheur v Federal Republic of Germany, reference from the German Federal Court of Justice dated 17 February
(1994) 11 SLR 33; [1994] SLRYB 112
Brasserie du P∏cheur v Germany (1996) judgment of the German Federal Court of 24 October not yet reported
(1997) 21 SLR 34; [1997] SLRYB 104
Brasserie du P∏cheur v Germany; R v Secretary of State for Transport ex p Factortame Ltd and Others [1996] 1 CMLR 889; [1996] All ER (EC) 301 Bridgers and Another v Sandford (1991) The Times, 30 April, CA Brind v Secretary of State for the Home Department [1991] 1 All ER 720, HL Brinks Ltd v Abu-Saleh and Others (No 3) (1995) The Times, 23 October Bristol and West Building Society v Ellis and Ellis (1997) 73 P&CR 158, CA British Aerospace plc v Dee Howard Co [1993] 1 LI LR 368
(1996) 19 SLR 42; [1996] SLRYB 105 (1991) 4 SLR 50; [1991] SLRYB 170 (1991) 3 SLR 3; [1991] SLRYB 9 (1996) 17 SLR 30; [1996] SLRYB 85 (1997) 21 SLR 51; [1997] SLRYB 157 (1993) 10 SLR 14; [1993] SLRYB 34
British Gas Plc (respondents) v McCarrick [1991] IRLR 305, CA
(1991) 4 SLR 42; [1991] SLRYB 153
British Racing Drivers Club Ltd v Hextall Erskine & Co [1996] 3 All ER 667
(1996) 19 SLR 12; [1996] SLRYB 28
Brown and Root Technology Ltd v Sun Alliance and London Assurance Company Ltd (1997) January, CA
(1997) 21 SLR 52; [1997] SLRYB 158
Brown and Root v Sun Alliance [1995] 3 WLR 558
(1996) 17 SLR 55; [1996] SLRYB 161
Brown and Another v Bennett and Others (1998) The Times, 3 January
(1998) 24 SLR 34; [1998] SLRYB 92
Brown v KMR Services Ltd (1995) The Independent, 12 July
(1996) 17 SLR 50; [1996] SLRYB 139
Bruton v London and Quadrant Housing Trust [1997] 147 NLJ 1385, CA
(1998) 23 SLR 57; [1998] SLRYB 153
Bruton v London and Quadrant Housing Trust [1999] 3 WLR 150, HL
(1999) 28 SLR 60; [1999] SLRYB 168
Bryan v United Kingdom (Case No 44/1994/49L/573) (1995) The Times, 8 December
(1996) 18 SLR 26; [1996] SLRYB 79
Buller v Judy Properties [1992] 64 P & CR 176, CA
(1993) 8 SLR 56; [1993] SLRYB 142
Bullivant Holdings Ltd v IRC [1998] BTC 234 Bumper Development Corp Ltd v Commissioner of Police of the Metropolis [1991] 4 All ER 638, CA Burton and Another v FX Music; Taube v FX Music (1999) The Times, 8 May, HC Burton v Islington Health Authority; de Martell v Merton and Sutton Health Authority [1993] 3 All ER 833, CA Busby and Another v Co-operative Insurance Society Ltd (1994) 06 EG 141
(1998) 25 SLR 58; [1998] SLRYB 166 (1992) 6 SLR 11; [1992] SLRYB 22 (2000) 29 SLR 38; [2000] SLRYB 111 (1993) 8 SLR 66; [1993] SLRYB 168 (1994) 12 SLR 67
C C & G Homes Ltd v Secretary of State for Health (1990) The Times, 9 November, CA C (a Minor) v DPP [1996] 1 AC 1 C (a Minor) v Director of Public Prosecutions (1994) The Times, 30 March
C v DPP Caerns Motor Services Ltd v Texaco Ltd and Another
200 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1991) 2 SLR 20; [1991] SLRYB 65 (1998) 24 SLR 28; [1998] SLRYB 73 (1994) 12 SLR 34; (1994) 13 SLR 50; [1994] SLRYB 77,126; (1995) 16 SLR 49; [1995] SLRYB 131 (1995) 16 SLR 22; [1995] SLRYB 61 (1995) 15 SLR 60; [1995] SLRYB 162
TA B L E
Cain v Leeds Western Health Authority [1990] IRLR 168, EAT
O F
C A S E S
(1990) 1 SLR 55; [1991] SLRYB 148
Cambridge Water Company v Eastern Counties Leather plc (1993) The Times, 10 December
(1992) 5 SLR 28; [1992] SLRYB 67; (1993) 9 SLR 36; [1993] SLRYB 72; (1994) 12 SLR 39; [1994] SLRYB 88
Campbell Connelly & Co Ltd v Barnett [1994] BTC 12
(1994) 13 SLR 64 [1994] SLRYB 169
Canadian Imperial Bank of Commerce v Bello and Others (1991) The Times, 18 November, CA Cancer Research, Campaign v Ernest Brown and Co [1998] PNLR 592 Capacious Investments Ltd v Tang Man Sit [1996] 2 WLR 192 PC Capital and Counties v Hampshire County Council [1996] 4 All ER 336 QBD Carmichael and Another v National Power plc (1999) 18 November, HL
(1992) 5 SLR 21; [1992] SLRYB 45 (1999) 26 SLR 59; [1999] SLRYB 173 (1996) 19 SLR 41; [1996] SLRYB 94 (1997) SLR 55; [1997] SLRYB 169 (2000) 29 SLR 29; [2000] SLRYB 81
Carr-Glynn v Frearsons (A Firm) [1998] 4 All ER 225, CA
(1999) 26 SLR 59; [1999] SLRYB 173
Carroll v Bank of India, 12 July 1999, Chancery Division
(1999) 28 SLR 60; [1999] SLRYB 168
Case C-167/97 R v Sec of State for Employment ex p Seymour Smith and Perez, 9 February 1999
(1999) 27 SLR 44; [1999] SLRYB 118
Case C-255/97 Pfeiffer Gro§handel GmbH v Lπwa Warenhandel GmbH, 11 May 1999
(1999) 28 SLR 47; [1999] SLRYB 120
Case C-309/97 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, 11 May 1999
(1999) 28 SLR 46; [1999] SLRYB 119
Case C-326/96 BS Levez v TH Jennings (Harlow Pools) Ltd, 1 December 1998
(1999) 27 SLR 43; [1999] SLRYB 117
Case C-394/96 Brown v Rentokil Ltd [1998] All ER (EC) 791
(1999) 26 SLR 42; [1999] SLRYB 116
Case T-188/97 Rothmans International BV v Commission, 19 July 1999
(1999) 28 SLR 46; [1999] SLRYB 119
Castle Phillips Finance v Piddington (1995) 70 P & CR 592, CA
(1996) 18 SLR 58; [1996] SLRYB 163
Central London Commercial Estates Ltd v Kato (1998) 15 July, unreported
(1998) 25 SLR 56; [1998] SLRYB 158
Cepheus Shipping Corporation v Guardian Royal Exchange Assurance plc [1995] 1 Lloyd’s Rep 622
(1996) 18 SLR 50; [1996] SLRYB 141
Cerium Investments Ltd v Evans and Others [1991] EGCS 1, CA Chaffe v Kingsley (1999) The Times, 12 December, CA
(1991) 3 SLR 48; [1991] SLRYB 169 (2000) 29 SLR 60; [2000] SLRYB 172
Chahal v United Kingdom (1996) The Times, 28 November; (1996) The Guardian, 16 November; (1996) Independent, 20 November
(1997) 20 SLR 24; [1997] SLRYB 37
Chailease Finance Corporation v Credit Agricole Indosuez, 16 April 1999, HC
(1999) 28 SLR 55; [1999] SLRYB 148
Chancery plc v Ketteringham (1994) The Times Law Rep, 10 May, CA
(1994) 13 SLR 60; [1994] SLRYB 155
Cheese v Thomas (1993) The Times, 24 August Chelsea Football and Athletic Co Ltd v SB Property Company Ltd (1992) The Times, 8 April, CA
(1993) 10 SLR 22; [1993] SLRYB 52 (1992) 7 SLR 20; [1992] SLRYB 41
Cheltenham and Gloucester Building Society v Norgan [1996] 1 All ER 449, CA
(1996) 18 SLR 57; [1996] SLRYB 162
Cheltenham and Gloucester plc v Booker (1996) The Times, 20 November
(1997) 21 SLR 51; [1997] SLRYB 158
Cheltenham and Gloucester plc v Krausz (1996) NLJ 13 December
(1997) 20 SLR 51; [1997] SLRYB 155
Chiswell Shipping Ltd v Liberian Jaguar Transports Inc (The ‘World Symphony’ and ‘World Renown’) [1992] LMLN 326, CA CIBC Mortgages v Pitt [1993] 4 All ER 433, HL Cie Commerciale Sucres v C Czarnikow Ltd [1990] 3 All ER 641, HL CIN Properties Limited v Gill [1993] 38 EG 152, CA Citibank NA v Brown Shipley [1991] 2 All ER 690 City Index Ltd v Leslie (1991) The Times, 21 March, CA City of London Corporation v Fell (1993) NLJ, 10 December, HL
City of London Corporation v Fell, Herbert Duncan Ltd v Cluttons [1993] 04 EG 115
(1992) 7 SLR 50; [1992] SLRYB 130 CA (1993) 10 SLR 51; [1993] SLRYB 146; HL (1994) 11 SLR 14, 47; [1994] SLRYB 50, 150 (1991) 2 SLR 8; [1991] SLRYB 20 (1994) 11 SLR 52 (1991) 4 SLR 16; [1991] SLRYB 58 (1991) 3 SLR 18; [1991] SLRYB 57 (1992) 5 SLR 64; [1992] SLRYB 151; (1992) 7 SLR 54; [1992] SLRYB 148; HL (1994) 11 SLR 51; [1994] SLRYB 153 (1993) 9 SLR 70; [1993] SLRYB 153
201 • STUDENT LAW REVIEW • 2000 YEARBOOK
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C A S E S
Clark v Bye (HM Inspector of Taxes) [1997] BTC 121 Clark v Chief Land Registrar (1994) The Times Law Rep, 10 May, CA
(1997) 21 SLR 54; [1997] SLRYB 164 HC (1993) 9 SLR 68; [1993] SLRYB 145; CA (1994) 13 SLR 60 [1994] SLRYB 155
Clough v Killey [1996] 72 P & CR D22, CA
(1997) 22 SLR 61; [1997] SLRYB 160
Clunis v, CAmden and Islington Health Authority [1998] 2 WLR 902, CA
(1998) 25 SLR 62; [1998] SLRYB 176
Clutton v Clutton [1991] 1 FLR 242, CA
(1991) 4 SLR 36; [1991] SLRYB 130
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd (1995) The Times, 29 December, CA
(1996) 18 SLR 30; [1996] SLRYB 90
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1997] 2 WLR 898, HL COAPI v Newman and Others (1992) The Times European Law Rep, 23 July Coba Golf Inc v Rata (1996) The Times, 11 October
(1998) 23 SLR 18; [1998] SLRYB 43 (1993) 8 SLR 36; [1993] SLRYB 95 (1997) 20 SLR 36; [1997] SLRYB 110
Colchester Borough Council v Smith [1992] 2 WLR 728, CA
(1992) 7 SLR 56; [1992] SLRYB 149
Collin Estates Limited v Buckley [1992] 40 EG 151, CA
(1993) 8 SLR 60; [1993] SLRYB 152
Collins v Addies (HM Inspector of Taxes) and related appeals [1991] BTC 244
(1991) 4 SLR 60; [1991] SLRYB 188
Colonia Versicherung AG v Amoco Oil Co [1997] 1 Lloyd’s Rep 261, CA
(1997) 22 SLR 54; [1997] SLRYB 139
Coloroll Pension Trustees Ltd v Russell and Others [1994] IRLR 586
(1995) 15 SLR 43; [1995] SLRYB 113
Colt Group Ltd v Couchman (2000) ICR 327, EAT
(2000) 31 SLR 34; [2000] SLRYB 83
Commission for New Towns v Cooper [1995] 2 All ER 929, CA
(1995) 16 SLR 62; [1995] SLRYB 164
Commission v Anic Partecipazioni SpA (Case C-49/92P) (1999) 8 July
(2000) 29 SLR 41; [2000] SLRYB 121
Commission v Denmark (1991) The Times European Law Rep, 25 February Commission v France (not yet reported)
(1991) 3 SLR 32; [1991] SLRYB 106 (1998) 24 SLR 38; [1998] SLRYB 107
Commission v United Kingdom (1992) The Times, 15 April, ECJ
(1992) 7 SLR 47; [1992] SLRYB 122
Commission v United Kingdom ECJ (1999) The Times, 30 April
(1999) 27 SLR 39; [1999] SLRYB 100
Commission v United Kingdom [1994] Industrial Relations Law Rep 392
(1995) 14 SLR 38; [1995] SLRYB 112
Compagnie Commerciale Sucres et Dendrees v Czarnikow Ltd (The Naxos) [1991] 1 Lloyds Law Reports 29, HL
(1991) 2 SLR 53; [1991] SLRYB 134
Compania Porto Rafti Commerciale SA v Ultramar Panama Inc and Others (The Captain Gregos) [1990] 1 Lloyds Rep 310, CA
(1990) 1 SLR 52; [1991] SLRYB 132
Connaught Restaurants Limited v Indoor Leisure Limited [1993] EGCS 143
(1993) 10 SLR 57; [1993] SLRYB 155
Continental Bank NA v Aeokos Compania Naviera SA [1994] 2 All ER 540, CA Coulthard v Disco Mix Club and Others (1999) The Times, 25 March, HC Countess Fitzwilliam v IRC [1993] BTC 8003, HL
Crawley Borough Council v URE [1995] 3 WLR 95, CA Credit Lyonnais Bank Nederland NV v Burch (1996) The Times, 1 July, CA
(1994) 13 SLR 19 [1994] SLRYB 33 (1999) 28 SLR 45; [1999] SLRYB 112 (1990) 1 SLR 68; [1991] SLRYB 186; CA (1992) 6 SLR 73; [1992] SLRYB 170; HL (1993) 10 SLR 61; [1993] SLRYB 166 (1996) 17 SLR 54; [1996] SLRYB 161 (1996) 19 SLR 40, 68; [1996] SLRYB 92, 164
Credit Lyonnais Bank Nederland v Export Credits Guarantee Department [1999] 2 WLR 540, HL
(1999) 27 SLR 62; [1999] SLRYB 180
Credit Suisse v Beegas Nominees Ltd [1994] 4 All ER 803
(1995) 15 SLR 60; [1995] SLRYB 162
Crego v Julian (1992) 1 All ER 744
(1992) 6 SLR 59; [1992] SLRYB 146
Culworth Estates Ltd v Society of Licensed Victuallers (1991) The Times, 28 February, CA
(1991) 3 SLR 47; [1991] SLRYB 168
Cunningham and Others v Reading Football Club Ltd (1991) The Independent, 20 March Curtis v Betts [1990] 1 All ER 769, CA
202 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1991) 3 SLR 60; [1991] SLRYB 197 (1990) 1 SLR 73
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C A S E S
D D v D (1993) The Independent, 13 October
(1991) 2 SLR 41; [1991] SLRYB 127;
D v Hereford and Worcester County Council (1990) The Times, 2 November
(1991) 2 SLR 41; [1991] SLRYB 126
Dalgleish and Others v Lothian and Borders Police Board [1991] IRLR 411
(1992) 5 SLR 62; [1992] SLRYB 142
(1994) 12 SLR 16; [1994] SLRYB 31
Davies v Norwich Union, unreported, 4 November 1998, CA; Scottish Equitable v Virdee, unreported, 23 November 1998, CA Davis v Richards and Wallington Industries Ltd [1990] 1 WLR 1511, Ch D
(1999) 26 SLR 56; [1999] SLRYB 167 (1991) 2 SLR 26; [1991] SLRYB 87
Dawes v DPP (1994) The Times, 2 March, DC
(1994) 12 SLR 31; [1994] SLRYB 73
Deanplan Ltd v Mahmoud and Another [1992] EGCS 30
(1992) 7 SLR 57; [1992] SLRYB 156
Deco Ltd v Joinson [1991] IRLR 63, EAT
(1991) 3 SLR 43; [1991] SLRYB 152
Dekker v Stichting Vormingscentrum Voor Jonge Volwassen (VJV-Centrum) Plus [1991] IRLR 27 Delaney v Staples t/a De Montford Recruitment (1991) The Times, 9 January, CA Deliège v Ligue Francophone de Judo et Disciplines Associées ASBL (Case C-51/96) (2000) The Times, 19 April Denetower Ltd v Toop and Others (1991) The Times, 5 April, CA
(1991) 2 SLR 46; [1991] SLRYB 150 (1991) 2 SLR 47; [1991] SLRYB 151 (2000) 31 SLR 49; [2000] SLRYB 124 (1992) 5 SLR 21; [1992] SLRYB 45
Denkavit International v Federal Finance Authority, not yet reported, Judgment of 17 October 1996
(1997) 21 SLR 33; [1997] SLRYB 104
Dent v Dent [1996] 1 WLR 683
(1996) 19 SLR 65; [1996] SLRYB 165
Derby & Co Ltd v Weldon (No 9) (1990) The Times, 9 November, CA
(1991) 2 SLR 34; [1991] SLRYB 114
Derbyshire County Council v Times Newspapers Ltd (1993) 143 NLJ 283, HL
(1993) 10 SLR 17; [1993] SLRYB 42
Devlin v Hall (1990) The Times, 26 June Devrajan v District Judge Ballagh [1993] 3 IR 377 Dillenkofer and Others v Federal Republic of Germany [1996] All ER (EC) 917 Dimond v Lovell [1999] 3 All ER 1, CA Dimond v Lovell [2000] 2 WLR 1121; [2000] 2 All ER 897, HL Dimskal Shipping Co SA v International Transport Workers’ Federation [1991] 4 All ER 871, HL
(1990) 1 SLR 7; [1991] SLRYB 18 (1995) 14 SLR 18; [1995] SLRYB 38 (1997) 20 SLR 33; [1997] SLRYB 100 (1999) 28 SLR 6; [1999] SLRYB 24 (2000) 31 SLR 16; [2000] SLRYB 33 (1992) 5 SLR 56; (1992) 6 SLR 19; [1992] SLRYB 39, 126
Director General of Fair Trading v First National Bank plc (1999) The Times, 21 September
(1999) 28 SLR 9; [1999] SLRYB 25
Director General of Fair Trading v First National Bank plc (2000) The Times, 14 March, CA
(2000) 30 SLR 14; [2000] SLRYB 32
Director of Public Prosecutions v Barnard and Others (1999) The Times, 9 November, QBD
(2000) 29 SLR 6; [2000] SLRYB 19
Director of Public Prosecutions v Channel Four Television Co Ltd and Another (1992) The Times, 14 September Divall v Harrison and Another [1992] 38 EG 147, CA Dodds v Yorkshire Bank Finance Ltd [1992] CCLR 30, CA Don King Productions Inc v Warren and Others [1998] 2 All ER 608
(1993) 8 SLR 15; [1993] SLRYB 40 (1993) 8 SLR 58; [1993] SLRYB 151 (1992) 7 SLR 8; [1992] SLRYB 10 (1998) 25 SLR 29; [1998] SLRYB 94
Dong Bang Minerva (UK) Ltd v Davina Ltd [1994] EGCS 104, CA
(1995) 14 SLR 54; [1995] SLRYB 169
Dora v Simper and Others, unreported, 15 March 1999, CA
(1999) 28 SLR 49; [1999] SLRYB 126
DPP v H (1997) The Times, 2 May, DC
(1997) 22 SLR 24; [1997] SLRYB 58
DPP v Jones and Another (1999) Divisional Court [1997] 2 All ER 119; HL (1999) 4(2) J Civ Lib 253, HL
(1999) 28 SLR 14; [1999] SLRYB 45
DPP v K and C [1997] Crim LR 121
(1997) 21 SLR 18; [1997] SLRYB 55
DPP v Little [1991] Crim LR 900 DPP v Rogers [1998] Crim LR 202, QBD
(1992) 6 SLR 26; [1992] SLRYB 57 (1998) 24 SLR 21; [1998] SLRYB 54
DPP v Welsh (1996) The Times, 18 November
(1997) 20 SLR 36; [1997] SLRYB 110
Drake v Whipp (1995) The Times Law Rep, 19 December, CA
(1996) 18 SLR 58; [1996] SLRYB 163
Dudley MBC v Henley Foundries (1999) ENDS 294
(2000) 30 SLR 40; [2000] SLRYB 101
Duffen v FRA BO SpA (1998) The Times, 15 June, CA
(1998) 25 SLR 15; [1998] SLRYB 47
203 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Duke v Wynne [1989] 3 All ER, CA Dunbar Bank plc v Nadeem [1997] 2 All ER 253, Ch D Dunbar Bank plc v Nadeem [1998] 3 All ER 876, CA
(1990) 1 SLR 26; [1991] SLRYB 63 (1997) 22 SLR 22; [1997] SLRYB 49 (1998) 25 SLR 14, 56; [1998] SLRYB 45, 158
E Eagle Trust Plc v SBC Securities Ltd [1992] 4 All ER 466 EC Commission v EC Council, Case No C-155/91 (1993) 17 March, unreported, ECJ Edmunds v Coleman [1997] BTC 564
(1993) 8 SLR 33; [1993] SLRYB 83 (1993) 10 SLR 30; [1993] SLRYB 74 (1998) 23 SLR 59; [1998] SLRYB 163
Effort Shipping Co Ltd v Linden Management SA and Another (The Giannis K) (1996) The Times, 5 February Effort Shipping Co Ltd v Linden Management SA and Others (The Giannis K) (1998) The Times, 29 January, HL El Ajou v Dollar Land Holdings plc and Another (1994) The Times, 3 January, CA
(1996) 18 SLR 50; [1996] SLRYB 141 (1998) 24 SLR 49; [1998] SLRYB 135 (1994) 12 SLR 45
El Ajou v Dollar Land Holdings plc and Another [1993] 3 All ER 717
(1994) 11 SLR 31; [1994] SLRYB 101
El Corte Inglès SA v Rivero [1996] 2 CMLR 507
(1997) 21 SLR 35; [1997] SLRYB 105
Electricity Supply Nominees Ltd v IAF Group Ltd (1992) EGCS 145 Elitestone Properties v Morris [1997] 1 WLR 687, HL Eller v Grove Crest Investments Limited [1994] 27 EG 139
(1993) 9 SLR 71; [1993] SLRYB 154 (1997) 22 SLR 60; [1997] SLRYB 159 (1994) 13 SLR 63
Ellis Shipping Corporation v Voest Alpine Intertrading (The ‘Lefthero’) [1992] LMLN 325, CA
(1992) 7 SLR 49; [1992] SLRYB 129
Elpis Maritime Co Ltd v Marti Chartering Co Inc (The ‘Maria D’) (1991) 2 Lloyd’s Rep 311, HL
(1992) 5 SLR 54; [1992] SLRYB 125
EMI Group Electronics Limited (formerly Thorn EMI Electronics Limited) v Coldicott [1997] BTC 532 Emmott v Minister for Social Welfare [1991] 3 CMLR 894
(1998) 23 SLR 59; [1998] SLRYB 163 (1992) 6 SLR 40; [1992] SLRYB 93
Empress, Car Company (Abertilley) Ltd v National Rivers Authority [1997] Env LR 227
(1997) 22 SLR 34; [1997] SLRYB 84
Empress, Car Company (Abertilley) Ltd v National Rivers Authority (1998) The Times, 9 February, HL
(1998) 24 SLR 30; [1998] SLRYB 81
Enderby v Frenchay Health Authority (1993) The Times European Law Rep, 12 November
(1991) 2 SLR 46; (1991) 3 SLR 44; [1991] SLRYB 151, 152; (1994) 12 SLR 51; [1994] SLRYB 116
Ensign Tankers (Leasing) Ltd v Stokes (HMIT) [1992] BTC 110, HL
CA (1991) 3 SLR 56; [1991] SLRYB 187; HL (1992) 7 SLR 63; [1992] SLRYB 170
Environment Agency v Brock plc (1998) The Times, 26 March
(1999) 26 SLR 37; [1999] SLRYB 98
Environment Agency v Stout (aka Re Mineral Resources Ltd) [1999] 1 All ER 746, HC
(1999) 27 SLR 38; [1999] SLRYB 99
Equity and Law Home Loans Ltd v, CA Church Ltd (1991)
(1992) 5 SLR 66; [1992] SLRYB 153
Equity and Law Home Loans Ltd v Prestidge (1991) The Independent, 10 October
(1992) 5 SLR 48; [1992] SLRYB 113
ERG Petroli SpA v Vitol SA (The ‘Ballenita’ and ‘BP Energy’) [1992] 2 Lloyd’s Rep 455
(1993) 9 SLR 61; [1993] SLRYB 129
Escalus Properties v Robinson [1995] 3 WLR 524, CA
(1996) 17 SLR 55; [1996] SLRYB 161
Esso Petroleum Co Ltd v Milton (1997) The Times, 13 February, CA
(1997) 21 SLR 44; [1997] SLRYB 135
Estates Gazette Limited v Benjamin Restaurants Limited and Another (1994) The Times, 27 May (1994) 13 SLR 62 [1994] SLRYB 160;
(1994) 12 SLR 66; [1994] SLRYB 160; (1995) 15 SLR 60; [1995] SLRYB 161
Etablissements Soules et Cie v Intertradax SA (The Handy Mariner) (1990) The Financial Times, 14 November, CA Ex p Guardian Newspapers and Others (1993) The Times, 26 October, CA Ex parte Central Independent Television plc and Others (1990) The Times, 6 November
204 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1991) 2 SLR 52; (1991) 4 SLR 38; [1991] SLRYB 132, 136 (1994) 11 SLR 23; [1994] SLRYB 71 (1991) 2 SLR 14; [1991] SLRYB 47
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Exchange Travel Agency Ltd (In Administration) v Triton Property Trust Plc (1991) LSG 27 March, 33 Exercise Shipping Co Ltd v Bay Maritime Lines Ltd (The ‘Fantasy’) [1992] 1 Lloyd’s Rep 235, CA
(1991) 4 SLR 50; [1991] SLRYB 171 (1992) 5 SLR 54; [1992] SLRYB 125; CA (1992) 7 SLR 49; [1992] SLRYB 129
F Falkingham v Farley (1991) The Times, 22 February Familiapress v Heinrich Bauer, not yet reported Farah v Commissioner of Police of the Metropolis (1996) The Times, 10 October, CA
(1991) 4 SLR 18; [1991] SLRYB 68 (1997) 22 SLR 43; [1997] SLRYB 107 (1997) 20 SLR 10; [1997] SLRYB 35
Federation of CGT Trade Unions (Aisne) v Sidef Conforama and Marchandaise (1991) The Times European Law Rep, 6 March Ferndale Films Ltd v Granada Television Ltd [1993] 3 IR 362 Ferrishurst Ltd v Wallcite Ltd, unreported, 30 November 1998, CA Figg v Clarke (Inspector of Taxes) [1997] 1 WLR 603, HC
(1991) 3 SLR 32; [1991] SLRYB 107 (1995) 14 SLR 18; [1995] SLRYB 37 (1999) 26 SLR 55; [1999] SLRYB 166 (1998) 23 SLR 36; [1998] SLRYB 90
Finnegan v Clowney Youth Training Programme Ltd [1990] 2 All ER 546
(1991) 2 SLR 31; [1991] SLRYB 103
First National Bank v Syed [1991] 2 All ER 250
(1991) 4 SLR 48; [1991] SLRYB 163
First Sport Limited v Barclays Bank plc (1993) The Times, 11 March, CA Fitzpatrick v British Railways Board [1991] IRLR 376, CA Fitzpatrick (AP) v Sterling Housing Association (1999) The Times, 2 November, HL Foley v Post Office and HSBC Bank plc (formerly Midland Bank plc) v Madden (2000) 31 July, CA
(1993) 9 SLR 12; [1993] SLRYB 15 (1992) 5 SLR 62; [1992] SLRYB 142 (2000) 29 SLR 46; [2000] SLRYB 134 (2000) 31 SLR 34; [2000] SLRYB 83
Forey v London Buses Ltd (1991) The Times, 30 January
(1991) 2 SLR 57; [1991] SLRYB 178
Forthright Finance Ltd v Carlyle Finance Ltd [1997] CCLR 84, CA
(1997) 22 SLR 12; [1997] SLRYB 21
Forthright Finance Ltd v Ingate [1997] CCLR 95, CA
(1997) 22 SLR 13; [1997] SLRYB 22
Forward Trust Limited v Hornsby [1996] CCLR 18
(1996) 18 SLR 6; [1996] SLRYB 14
Foskett v McKeown and Others (1997) The Times, 27 June, CA
(1997) 22 SLR 37; [1997] SLRYB 93
Foskett v McKeown and Others (2000) The Times, 18 May, HL
(2000) 31 SLR 45; [2000] SLRYB 116
Foster and Others v British Gas plc (1990) The Times European Law Rep, 13 July Foster and Others v Spencer (1995) The Times, 14 June Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705 Francovich v Italian State and Bonifaci v Italian State [1992] IRLR 84
(1990) 1 SLR 39; [1991] SLRYB 100 (1995) 16 SLR 40; [1995] SLRYB 102 (1998) 25 SLR 10; [1998] SLRYB 40 (1992) 6 SLR 42; [1992] SLRYB 96
Francovich v Italian State [1995] ECR I-3843
(1997) 21 SLR 33; [1997] SLRYB 104
Frost v Chief Constable of the South Yorkshire Police [1997] 1 All ER 540, CA
(1997) 21 SLR 58; [1997] SLRYB 169
Fuller v Evans and Others (1999) The Times, 10 November, HC
(2000) 29 SLR 40; [2000] SLRYB 113
Fuller v Judy Properties Ltd (1991) The Times, 30 December, CA Funnel and Another v Stewart and Others (1995) The Times, 9 December
(1991) 3 SLR 22; [1991] SLRYB 67; CA (1992) 6 SLR 62; [1992] SLRYB 154 (1996) 18 SLR 29; [1996] SLRYB 89
G G Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd’s Rep 25 Galaxy Energy International Ltd v Novorosslysk Shipping Co (The Petr Schmidt) [1997] 1 Lloyd’s Rep 284, Com C Garcin v Amerindo Investment Advisors Ltd (1991) The Times, 12 June Gascoine v Pyrah (1991) The Independent, 11 December Gaudiya Mission v Others v Brahmachary and Others (1997) The Times, 24 September, CA
(1993) 10 SLR 19; [1993] SLRYB 50 (1998) 23 SLR 51; [1998] SLRYB 133 (1991) 4 SLR 34; [1991] SLRYB 117 (1992) 6 SLR 12; [1992] SLRYB 23 (1998) 23 SLR 36; [1998] SLRYB 90
General Mediterranean Holdings SA v Patel and Another [1999] 3 All ER 673, QBD
(1999) 28 SLR 4; [1999] SLRYB 16
Gibbon v South West Water Services Ltd (1992) The Times, 26 November, CA
(1993) 8 SLR 28; [1993] SLRYB 71
205 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Gill and another v Chief Constable of Lancashire (1992) The Independent, 22 November, CA
(1993) 8 SLR 39; [1993] SLRYB 102
Gillett v Holt [2000] 2 All ER 289; Evans v James (2000) 20 July; [2000] EGCS 95, CA; Flowermix v Site Development (Ferndown) Ltd (2000) 11 April, HC
(2000) 31 SLR 67; [2000] SLRYB 174
Gillett v Holt (1998) The Times, 18 June
(1998) 25 SLR 54; [1998] SLRYB 156
Gillingham Borough Council v Medway (Chatham) Dock Co [1992] 3 All ER 923
(1992) 5 SLR 30; [1992] SLRYB 67; (1993) 8 SLR 67; [1993] SLRYB 168
Girvan (HM Inspector of Taxes) v Orange Personal Communication Systems Ltd [1998] BTC 181 Glasgow City Council and Others v Marshall and Others (2000) 3 February, HL
(1998) 25 SLR 59; [1998] SLRYB 166 (2000) 30 SLR 33; [2000] SLRYB 82
Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce (LORICO) [1997] Lloyd’s Rep 386; 4 All ER 514, CA Glencore International AG v Bank of China (1995) The Times, 27 November, CA GM Shepherd v North West Securities [1992] CCLR 84, Scotland Godfrey v Demon Internet Ltd [1999] 4 All ER 342, QBD Goff v Gauthier [1991] 62 P & CR 388 Gold and Another v Hill (1998) The Times, 24 August Goldsmith v Bhoyrul [1997] 4 All ER 268, QBD Goodchild v Goodchild (1995) The Times, 22 December
(1998) 23 SLR 8 and 52; (1998) SLRYB 19 and 134 (1996) 17 SLR 39; [1996] SLRYB 113 (1992) 6 SLR 6; [1992] SLRYB 9 (2000) 29 SLR 62; [2000] SLRYB 178 (1992) 6 SLR 20; [1992] SLRYB 46 (1998) 25 SLR 30; [1998] SLRYB 85 (1998) 23 SLR 62; [1998] SLRYB 169 (1996) 18 SLR 29; [1996] SLRYB 89
Goodwin v Curtis (HM Inspector of Taxes) [1996] BTC 501
(1996) 19 SLR 69; [1996] SLRYB 171
Goodwin v Curtis [1998] BTC 176
(1998) 25 SLR 60; [1998] SLRYB 167
Gordon v Inland Revenue Commissioners [1991] BTC 130
(1991) 4 SLR 59; [1991] SLRYB 187
Goswell v Commissioner of Metropolitan Police (1996) The Guardian, 27 April
(1996) 19 SLR 16; [1996] SLRYB 37
Goulding and Another v James and Another (1997) The Times, 7 February, CA
(1997) 21 SLR 30; [1997] SLRYB 91
Graham Page v Combined Shipping and Trading Company Ltd [1996] Trading LR 357, CA
(1997) 21 SLR 44; [1997] SLRYB 136
Graham v Pitkin [1992] 2 All ER 235 PC
(1992) 7 SLR 21; [1992] SLRYB 47
Gran Gelato Ltd v Richcliff (Group) Ltd [1992] 1 All ER 865
(1992) 7 SLR 22; [1992] SLRYB 48
Grant v South-West Trains Ltd (1998) The Times European Law Rep, 23 February
(1998) 24 SLR 40; [1998] SLRYB 108
Gray (HM Inspector of Taxes) v Seymours Garden Centre (Horticulture) [1995] BTC 320
(1996) 17 SLR 58; [1996] SLRYB 170
Graysim Holdings Ltd v P & O Property Holdings Ltd [1994] 45 EG 150, CA
(1995) 14 SLR 53; [1995] SLRYB 168
Griffin v Craig-Harvey [1994] BTC 3
(1994) 13 SLR 64 [1994] SLRYB 170
Griffin v London Pension Fund Authority (1993) The Times European Law Rep, 18 February, EAT Groener v Minister for Education [1990] 1 CMLR 401 Group Josi Reinsurance Co SA v Universal General Insurance Co (Case C-412/98) (2000) 13 July, ECJ Guerra v Baptiste (1995) The Times, 8 November, PC Guild v IRC [1992] 2 All ER 10, HL
(1993) 9 SLR 49; [1993] SLRYB 98 (1990) 1 SLR 41; [1991] SLRYB 101 (2000) 31 SLR 62; [2000] SLRYB 158 (1996) 17 SLR 16; [1996] SLRYB 34 (1992) 7 SLR 32; [1992] SLRYB 80
Guinness Mahon & Co Ltd v Kensington and Chelsea Royal London Borough Council [1998] 2 All ER 271, CA
(1999) 26 SLR 40; [1999] SLRYB 104
Gunning and Others v Buckfast Abbey Trustees and Another (1994) The Times, 9 June
(1994) 13 SLR 42; [1994] SLRYB 104
Gwembo Valley Development Co Ltd v Koshy and Another [1998] 2 BCLC 613
(1999) 27 SLR 11; [1999] SLRYB 32
H Haddon v Van Den Bergh Foods Ltd (1999) IRLR 672, EAT Hacker v Euro Relais (1992) The Independent, 9 April, ECJ
(2000) 29 SLR 30; [2000] SLRYB 82 (1992) 7 SLR 14; [1992] SLRYB 25
Halford v Brookes and another (1991) The Times, 1 October
(1992) 5 SLR 44; [1992] SLRYB 102
Halifax Building Society v Thomas [1995] 4 All ER 673, CA
(1996) 17 SLR 54; [1996] SLRYB 160
206 • STUDENT LAW REVIEW • 2000 YEARBOOK
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Halifax Financial Services Ltd v Intuitive Systems Ltd [1999] 1 All ER (Comm) 303, QBD Halifax Mortgage Services (formerly BNPMortgages Ltd) v Stepsky [1995] 4 All ER 656 Hall (HMIT) v Lorimer (1993) 5 November, CA Hall v Harris [1992] CSW 4182, CA Hambro and Others v The Duke of Marlborough and Others [1994] 3 WLR 341 Hammersmith and Fulham London Borough Council v Monk (1991) The Times, 6 December, HL Hammond v Mitchell [1991] 1 WLR 1127
(1999) 28 SLR 18; [1999] SLRYB 56 (1996) 17 SLR 17, 54; [1996] SLRYB 42, 160 (1994) 11 SLR 56; [1994] SLRYB 169 (1993) 8 SLR 59; [1993] SLRYB 152 (1994) 13 SLR 38, 60 [1994] SLRYB 102, 156 (1992) 5 SLR 63; [1992] SLRYB 145 (1992) 5 SLR 63; (1992) 7 SLR 22; [1992] SLRYB 47, 145
Hampson v Department of Education and Science [1990] IRLR 302, HL
(1990) 1 SLR 56; [1991] SLRYB 149
Handbridge Ltd v British Aerospace Communications Ltd [1994] 3 IR 342
(1995) 14 SLR 18; [1995] SLRYB 37
Handels-Og Kontorfunktionaeremes Forbund 1 Danmark (acting for Hertz) v Dansk Arbejdsgiver-Forening (acting for Aldi Marked K/S) [1991] IRLR 31 Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd [1990] 1 All ER 737 (CA) Harries and Others v Church Commissioners for England [1993] 2 All ER 300
(1991) 2 SLR 46; [1991] SLRYB 150 (1990) 1 SLR 7; [1991] SLRYB 17 (1993) 10 SLR 31; [1993] SLRYB 84
Harris v Evans [1998] 1 WLR 1285, CA
(1998) 25 SLR 64; [1998] SLRYB 176
Harrods Ltd v Harrodian School (1996) The Times, 3 April, CA
(1996) 19 SLR 54; [1996] SLRYB 132
Haystead v DPP (2000) The Times, 2 July, DC
(2000) 31 SLR 31; [2000] SLRYB 68
Heil v Rankin [2000] 2 WLR 1173, CA
(2000) 31 SLR 70; [2000] SLRYB 184
Heinl and Others v Jyske Bank (Gibraltar) Ltd (1999) The Times, 28 September, CA
(2000) 29 SLR 36; [2000] SLRYB 110
Helen Steel and Others v UK Application No 24838/94; Report of the Commission, unreported
(1999) 26 SLR 16; [1999] SLRYB 41
Hellenic Steel Co and others v Svolamor Shipping Co Ltd (The Kominios S) (1990) The Financial Times, 20 December, CA
(1991) 2 SLR 52; [1991] SLRYB 133
Hellewell v Chief Constable of Derbyshire (1995) The Times, 13 January
(1995) 16 SLR 18; [1995] SLRYB 47
Her Majesty’s Attorney General v Blake (2000) 3 WLR 625, HL
(2000) 31 SLR 25; [2000] SLRYB 58
Herbet Duncan Ltd v Cluttons (1992) EG 110
(1992) 7 SLR 54; [1992] SLRYB 148
Hevican v Ruane [1991] NLJ 235
(1991) 3 SLR 59; [1991] SLRYB 197
Hewitson v Hewitson (1994) The Times, 14 October, CA
(1995) 14 SLR 16; [1995] SLRYB 36
Hill and Another v Revenue Commissioners (1998) The Times European Law Rep, 2 July
(1998) 25 SLR 40; [1998] SLRYB 110
Hillman v Rodgers (1997) 19 December, unreported, CA
(1998) 25 SLR 57; [1998] SLRYB 159
Hindcastle Ltd v Barbara Attenborough Associates Ltd [1994] 43 EG 154, CA Holbeck Hall Hotel Ltd v Scarborough Borough Council (2000) 22 February, CA Holdom v Kidd [1991] 2 EG 163, CA Holmes v Mitchell (HM Inspector of Taxes) [1991] BTC 28 Horsfall and Another v Haywards (a Firm) (1999) The Times, 11 March, CA
(1995) 14 SLR 53; [1995] SLRYB 168 HL (1994) 13 SLR 26 [1994] SLRYB 59 (2000) 30 SLR 70; [2000] SLRYB 182 (1991) 4 SLR 19; [1991] SLRYB 69 (1991) 3 SLR 56; [1991] SLRYB 187 (1999) 28 SLR 44; [1999] SLRYB 111
Hounslow London Borough Council v Pilling (1993) The Times, 4 March, CA
(1993) 9 SLR 66; [1993] SLRYB 144
Howell v Montey (1991) 61 P & CR, CA
(1991) 4 SLR 48; [1991] SLRYB 163
Hughes v Asset Managers plc [1995] 3 All ER 669
(1995) 16 SLR 20; [1995] SLRYB 54
Hui Chi-ming v R [1991] 3 All ER 897 PC Hunter and Others v Canary Wharf Ltd; Hunter and Others v London Dockland Development Corp (1996) The Times, 13 October Hunter and Others v Canary Wharf Ltd; Hunter and Others v London Dockland Development Corp [1997] 2 WLR 684; [1997] 2 All ER 426, HL
(1992) 5 SLR 22; [1992] SLRYB 53 (1996) 17 SLR 28; [1996] SLRYB 77
(1997) 22 SLR 65; (1998) 23 SLR 32; [1997] SLRYB 171; [1998] SLRYB 80
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Hunter v Moss [1993] 1 WLR 934
(1993) 10 SLR 31; [1993] SLRYB 83
Hussain v Lancaster City Council [1999] 2 WLR 1142, CA
(1999) 28 SLR 62; [1999] SLRYB 182
Hussain v Singha (1992) The Independent, 19 October, CA
(1993) 8 SLR 58; [1993] SLRYB 151
I I P Metal Ltd v Ruote O Z SpA [1983] 1LI LR 60, Com C IDC Group Ltd v Clark (1992) EG 108
(1994) 12 SLR 14; [1994] SLRYB 29 (1992) 7 SLR 56; [1992] SLRYB 149
In Re Aktiebolag Draco (1996) The Times, 27 March
(1996) 19 SLR 54; [1996] SLRYB 133
In Re C (A Minor) [1996] 4 All ER 871, HL
(1997) 21 SLR 40; [1997] SLRYB 120
In Re D (Minors) (Conciliation: Privilege) (1993) The Times, 12 February, CA
(1993) 9 SLR 51; [1993] SLRYB 105
In Re Goldcorp Exchange Ltd [1994] 3 WLR 199 PC
(1994) 13 SLR 13 [1994] SLRYB 19
In Re Gorman (a bankrupt) [1990] 1 WLR 616
(1991) 2 SLR 20; [1991] SLRYB 65
In Re Highway Foods International Ltd (1994) The Times, 1 November
(1995) 14 SLR 10; [1995] SLRYB 22
In Re J (A Minor) (1991) The Times, 6 March, CA
(1991) 3 SLR 39; [1991] SLRYB 128
In Re Palmer (decd) [1993] 3 WLR 877 HC
(1994) 11 SLR 50; [1994] SLRYB 152
In Re Patent Application No 9204959.2 by Fujitsu Ltd (1996) The Times, 18 June
(1996) 19 SLR 56; [1996] SLRYB 134
In Re Pavlou (A Bankrupt) [1993] 1 WLR
(1993) 10 SLR 51; [1993] SLRYB 146
In Re W (Minors) (Sexual abuse: standard of proof) (1993) The Times, 1 December, CA
(1994) 12 SLR 52; [1994] SLRYB 124
In re H and Others (Minors) (Sexual abuse: standard of proof) 2 WLR 8, HL
(1996) 18 SLR 40; [1996] SLRYB 123
India Oil Co v Vanol (The ‘Athenian Olympics’) (1991) QBD Commercial Court, 26 March; LMLN 301 Ingmar GB Ltd v EatonLeonard Technologies Inc, unreported, 31 July 1998 Iperion Investments Corporation v Broadwalk House Residents Ltd (1992) CSW, 24 May IRC v McGuckian [1997] BTC 346 IRC v Oldham Training and Enterprise Council (1996) The Times, 10 October ISC Technologies v Guerin [1992] 2 LL LR 430
(1991) 4 SLR 38; [1991] SLRYB 136 (1998) 25 SLR 48; [1998] SLRYB 139 (1992) 7 SLR 58; [1992] SLRYB 157 (1997) 22 SLR 63; [1997] SLRYB 165 (1997) 20 SLR 29; [1997] SLRYB 88 (1993) 8 SLR 13; [1993] SLRYB 31
J J Sainsbury Plc v L’Connor (HMIT) [1990] BTC 363
(1990) 1 SLR 69; [1991] SLRYB 186
J v S-J (formerly J) (1996) The Independent, 26 November, CA
(1997) 20 SLR 37; [1997] SLRYB 118
Jaggers (t/a Shide Trees) v Ellis [1997] BTC 571, HC
(1998) 23 SLR 59; [1998] SLRYB 163
Jalname Ltd v Ridewood (1991) 61 P & CR 143
(1992) 6 SLR 60; [1992] SLRYB 147
James McNaughton Papers Group Ltd v Hicks Anderson & Co [1991] 1 All ER 134, CA
(1991) 2 SLR 59; [1991] SLRYB 196
James v Eastleigh Borough Council [1990] IRLR 288, HL
(1990) 1 SLR 56; [1991] SLRYB 148
James v Williams (1999) The Times, 13 April, CA Jarrett v Barclays Bank and Royal Bank of Scotland (1996) The Times, 18 November, CA Javid v Aqil (1991) 61 P & CR 164 Jebco Properties v Mastforce [1992] NPC 42 Jenic Properties Ltd v Andy Thornton Architectural Antiques 1992 SLT (ShCt) 5 John Lewis Properties plc v Viscount Chelsea (1993) 67 P & OATEN 120 John Munroe Ltd v London Fire and Civil Defence Authority [1996] 4 All ER 318 Johnson v Chief Adjudication Officer (No 2) [1995 IRLR 157 Johnson v Coventry Churchill International [1992] 3 All ER 16, HC Johnstone v Bloomsbury Health Authority [1991] IRLR 118, CA Jolley v Sutton LBC [2000] 1 WLR 1082, HL Jones and Others v Chief Constable of South Yorkshire (1990) NLJ, 7 December
208 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1999) 28 SLR 42; [1999] SLRYB 109 (1997) 20 SLR 6; [1997] SLRYB 14 (1990) 1 SLR 62; [1991] SLRYB 167; (1991) 4 SLR 46; [1991] SLRYB 162 (1992) 7 SLR 23; [1992] SLRYB 48 (1992) 7 SLR 13; [1992] SLRYB 24 (1995) 15 SLR 61; [1995] SLRYB 162 (1997) SLR 55; [1997] SLRYB 169 (1995) 15 SLR 42; [1995] SLRYB 113 (1993) 8 SLR 14; [1993] SLRYB 31 (1991) 3 SLR 43; [1991] SLRYB 152 (2000) 31 SLR 31; [2000] SLRYB 185 (1991) 2 SLR 60
TA B L E Jones v Wright [1991] 3 All ER 88, CA Joseph Hashman and Wanda Harrup v United Kingdom, Application No 25594/94, 25 November 1999, ECHR JT Developments v Quinn [1990] EGCS 151, CA
O F
C A S E S
(1991) 4 SLR 64; [1991] SLRYB 198 (2000) 29 SLR 8; [2000] SLRYB 21 (1991) 2 SLR 51; [1991] SLRYB 168; (1992) 6 SLR 60; [1992] SLRYB 146
Julian Hodge Bank Ltd v Hall (not yet reported), 12 June 1997, CA Julian v Crago (1991) The Times, 4 December, CA
(1998) 23 SLR 10; [1998] SLRYB 21 (1992) 5 SLR 19; [1992] SLRYB 43
K K v B (Brussels Convention) [1994] 1 FLR 267 K v K [1992] 2 FLR 220, CA Kalanke v Freie Hansestadt Bremen (1995) The Times European Law Rep, 2 October Kane v Radley-Kane and Others (1998) The Times, 1 June Kataria v Safeland plc [1997] TLR 619, CA Kaye v Robertson and Another (1990) The Times, 21 March Keck and Mithouard (1993) The Times European Law Rep, 25 November Keeble v Combined Lease Finance plc [1996] CCLR 63, CA Kelley v Corston [1997] 4 All ER 466, CA Kelly v Cooper [1992] 3 WLR 936, PC Kensington Pension Developments Ltd v Royal Garden Hotel (Oddenino’s Ltd) [1990] 27 EG 79 Kent v Griffiths (2000) 3 February, CA Kent CC v C [1992] 3 WLR 808, CA Kershaw v Whelan (1995) The Times, 20 December Kershaw v Whelan (No 2) (1997) The Times, 10 February Khorasandjian v Bush [1993] 3 All ER 669, CA
(1995) 14 SLR 15; [1995] SLRYB 35 (1993) 8 SLR 41; [1993] SLRYB 116 (1996) 17 SLR 36; [1996] SLRYB 105 (1998) 25 SLR 30; [1998] SLRYB 95 (1998) 24 SLR 56; [1998] SLRYB 155 (1990) 1 SLR 19; [1991] SLRYB 44 (1994) 11 SLR 34; [1994] SLRYB 113 (1996) 19 SLR 9; [1996] SLRYB 18 (1998) 23 SLR 62; [1998] SLRYB 170 (1993) 8 SLR 6; [1993] SLRYB 13 (1991) 2 SLR 21; [1991] SLRYB 66 (2000) 30 SLR 68; [2000] SLRYB 181 (1993) 8 SLR 43; [1993] SLRYB 118 (1996) 18 SLR 39; [1996] SLRYB 114 (1997) 21 SLR 31; [1997] SLRYB 92 (1993) 10 SLR 62; [1993] SLRYB 171
Killick v Roberts [1991] 4 All ER 289, CA
(1992) 5 SLR 66; [1992] SLRYB 153
King v Great Britain-China Centre (1991) The Times, CA
(1992) 5 SLR 61; [1992] SLRYB 141
Kleinwort Benson Ltd v Birmingham City Council [1996] 4 All ER 733, CA
(1997) 21 SLR 31; [1997] SLRYB 92
Kleinwort Benson Ltd v Lincoln City Council and Others (1998) The Times, 30 October, HL
(1999) 26 SLR 41; [1999] SLRYB 104
Knight v Lawrence [1991] Current Law Digest, June, 285
(1992) 5 SLR 20; [1992] SLRYB 44
Kownacki v Commission of Metropolitan Police (1996) The Guardian, 30 April
(1996) 19 SLR 16; [1996] SLRYB 37
Kurt A Becher GmbH and Co KG v Roplak Enterprises SA and Others (the ‘World Navigator’) [1991] 2 Lloyd’s Rep 23
(1991) 4 SLR 37; [1991] SLRYB 135
L L v DPP; T v DPP; W, GH and CH v DPP (1996) The Times, 31 May
(1996) 19 SLR 50; [1996] SLRYB 116
L’Alsacienne Première Société Alsacienne v Unistorebrand International Insurance AS [1995] LRLR 333 Lacey’s Footweat (Wholesale) Ltd v Bowler International Freight Ltd and Another [1997] 2 Lloyd’s Rep 369, CA Land v Sykes and another [1991] EGCS 98, CA Langton v Langton and Another (1995) The Times, 24 February
(1996) 18 SLR 52; [1996] SLRYB 143 (1998) 24 SLR 50; [1998] SLRYB 136 (1992) 5 SLR 64; [1992] SLRYB 151 (1995) 15 SLR 40; [1995] SLRYB 101
Latif v Hillside Estates (Swansea) Ltd [1992] EGCS 75
(1992) 7 SLR 58; [1992] SLRYB 156
Law Commission Report (No 242) ‘Privity of Contract: Contracts for the Benefit of Third Parties’
(1997) 20 SLR 15; [1997] SLRYB 44
Lawson (HMIT) v Johnson Mathey Plc [1991] BTC 150
(1990) 1 SLR 69; (1991) 4 SLR 59; [1991] SLRYB 185, 188 209 • STUDENT LAW REVIEW • 2000 YEARBOOK
TA B L E
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Leeds Permanent Building Society v Fanimi (1997) 21 April, unreported, CA
(1998) 25 SLR 55; [1998] SLRYB 157
Lehtonen v Fédération Royale Belge des Sociétés de Basket-ball ASBL (Case C-176/976) (2000) 13 April
(2000) 31 SLR 50; [2000] SLRYB 125
Leiber v Göbel [1994] ECR-1 2257 ECJ Leigh Land Reclamation Ltd v Walsall MBC [1991] JPL 867 Lewin v Fuell (1990) The Times, 20 January
(1995) 15 SLR 14; [1995] SLRYB 38 (1992) 6 SLR 28; [1992] SLRYB 68 (1990) 1 SLR 8; [1991] SLRYB 18
Lewis (HMIT) v Lady Rook (1992) The Financial Times, 3 March, CA
(1990) 1 SLR 68; [1991] SLRYB 185; CA (1992) 6 SLR 72; [1992] SLRYB 169
Liangsiriprasert v United States Government [1990] 2 All ER 867 PC
(1991) 2 SLR 25; [1991] SLRYB 78
Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 113
(1993) 8 SLR 54; [1993] SLRYB 141
LIpkin Gorman (a Firm) v Karpnale Ltd [1991] 3 WLR 10, HL
(1992) 5 SLR 32; [1992] SLRYB 77; (1993) 8 SLR 5; [1993] SLRYB 13
Lippiatt v South Gloucestershire Council [1999] 3 WLR 137, CA Lloyds Bank plc v Waterhouse (1990) The Independent, 27 February Lloyds Bank plc v Independent Insurance Co Ltd (1998) The Times, 3 December, CA [1999] 2 WLR 986, CA
(1999) 28 SLR 63; [1999] SLRYB 182 (1990) 1 SLR 22; [1991] SLRYB 56 (1999) 27 SLR 39; [1999] SLRYB 108 (2000) 29 SLR 12; [2000] SLRYB 31
Lloyds Bank plc v Rosset [1990] 1 All ER 111, HL
(1990) 1 SLR 58; [1991] SLRYB 159
Lloyds Bank v Carrick (1996) NLJ, 22 March, CA
(1996) 19 SLR 65; [1996] SLRYB 166
Lobban v The Queen (1995) The Times, 28 April
(1995) 16 SLR 47; [1995] SLRYB 129
Locabail (UK) Ltd v Bayfield Properties Ltd and Other Applications (1999) The Times, 17 November
(2000) 29 SLR 3; [2000] SLRYB 95 (2000) 29 SLR 34; [2000] SLRYB 3
Lombard Finance Ltd v Brookplain Trading Ltd [1991] 2 All ER 762
(1991) 4 SLR 18; [1991] SLRYB 69
London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 1 All ER 307
(1993) 9 SLR 66; [1993] SLRYB 143
London and Suburban Land and Building Co v Carey (1991) 62 P & CR 480
(1992) 6 SLR 60; [1992] SLRYB 147
London Borough of Ealing Trade Standards Department v Taylor [1995] Crim LR 166 London Borough of Hounslow v Hare (1992) 24 HLR 9 London Borough of Lambeth v Commission for Racial Equality [1990] IRLR 231, CA Longden v British Coal Corp [1998] 1 All ER 289, HL Love and another v Herity [1990] EGCS 142, CA Lowson v Coombes (1998) The Times, 2 December, CA Luc Thiet Thuan v R [1996] 2 All ER 1033 PC Luciano Arcaro, not yet reported Lustig-Prean and Beckett v The United Kingdom Applications Nos 31417/96, 27 September 1999,ECHR Lynch v Halifax Building Society and Royal Bank of Scotland [1995] CCLR 42 Lyric Shipping Inc v Intermetals and Another (The Al Taha) [1990] 2 Lloyds 117
(1995) 15 SLR 7; [1995] SLRYB 22 (1993) 10 SLR 54; [1993] SLRYB 147 (1990) 1 SLR 56; [1991] SLRYB 149 (1998) 24 SLR 61; [1998] SLRYB 172 (1991) 2 SLR 51; [1991] SLRYB 168 (1999) 27 SLR 38; [1999] SLRYB 107 (1996) 19 SLR 26; [1996] SLRYB 55 (1997) 20 SLR 35; [1997] SLRYB 103 (2000) 29 SLR 3; [2000] SLRYB 3 (1995) 15 SLR 8; [1995] SLRYB 23 (1990) 1 SLR 52; [1991] SLRYB 132
M M v Home Office (1993) NLJ 1099 Macaulay v Macaulay (1990) The Independent, 20 December Mahoney v Purnell and Others [1996] 3 All ER 61 Mairs (HM Inspector of Taxes) v Haughey [1993] BTC 339, HL Malcolm v Chancellor, Masters and Scholars of the University of Oxford (1990) The Times, 19 December
(1993) 10 SLR 17; [1993] SLRYB 42 (1991) 2 SLR 13; [1991] SLRYB 35 (1996) 19 SLR 40; [1996] SLRYB 93 (1993) 10 SLR 61; [1993] SLRYB 166 (1990) 1 SLR 23; (1991) 2 SLR 18; [1991] SLRYB 56
Manifest Shipping & Co Ltd v Uni-Polaris Insurance Co Ltd and La Réunion Européene (The Star Sea) [1997] 1 Lloyd’s Rep 360, CA
(1997) 22 SLR 52; [1997] SLRYB 138
Manley v New Forest DC [1999] Crim LR 976
(2000) 30 SLR 41; [2000] SLRYB 101
Mansfield v Weetabix Ltd [1998] 1 WLR 1263, CA
(1998) 25 SLR 66; [1998] SLRYB 178
Marc Rich & Co AG and others v Bishop Rock Marine Co Ltd and Others [1994] 3 All ER 686
(1995) 14 SLR 58; [1995] SLRYB 180
210 • STUDENT LAW REVIEW • 2000 YEARBOOK
TA B L E Marc Rich & Co v Societa Italiana Impianti (Case C-190/89) not yet reported Marcel and Others v Commissioner of the Police of the Metropolis and Others (1990) The Times, 5 December, CA
O F
C A S E S
(1992) 6 SLR 11; [1992] SLRYB 23 (1991) 2 SLR 14, 36; (1991) 4 SLR 32; [1991] SLRYB 46, 116
Margereson and Hancock v JW Roberts Ltd (1996) The Times, 17 April, CA
(1996) 19 SLR 35; [1996] SLRYB 81
Marleasing SA v La Comercial Internacional de Alimentacion SA, not yet reported, 19 November 1990 Marschall v Land Nordrhein-Westfalen [1997] All ER (EC) 865; [1998] IRLR 39 Marshall v Southampton and SW Hampshire Area Health Authority (No 2) (1993) The Times European Law Rep, 4 August Mason v Nwokorie [1994] 05 EG 155 Massey v Midland Bank plc (1994) The Times, 23 March, CA
(1991) 4 SLR 29; [1991] SLRYB 107 (1998) 24 SLR 37; [1998] SLRYB 106 (1993) 10 SLR 38; [1993] SLRYB 98 (1994) 12 SLR 67 (1995) 14 SLR 52; [1995] SLRYB 161; (1995) 16 SLR 63; [1995] SLRYB 165
Mathura v Mathura (1994) The Times Law Rep, 14 May, CA
(1994) 13 SLR 61 [1994] SLRYB 156
Matthew v T M Sutton (1994) The Times, 22 June
(1994) 13 SLR 39 [1994]; SLRYB 103
MCC Proceeds Inc v Bishopsgate Investment Trust plc and Others, unreported, 4 November 1998, CA
(1999) 27 SLR 46; [1999] SLRYB 124
MCC Proceeds Inc v Lehman Brothers International (Europe) (1998) The Times, 14 January, CA
(1998) 24 SLR 34; [1998] SLRYB 92
McCauley v Hope and Another (1999) The Independent, 21 December, CA
(1999) 27 SLR 45; [1999] SLRYB 123
McCausland v Duncan Lawrie Ltd [1996] 4 All ER 995
(1997) 21 SLR 50; [1997] SLRYB 157
McConnell v Chief Constable of Greater Manchester [1990] 1 All ER 423, CA
(1990) 1 SLR 31
McFarlane v Tayside Health Board [1999] 2 WLR 1301, HL
(2000) 30 SLR 67; [2000] SLRYB 180
McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53, HL
(1994) 13 SLR 67 [1994] SLRYB 176
McGrath v Wallis (1995) The Times, 13 April, CA
(1995) 16 SLR 40; [1995] SLRYB 102
McHardy & Sons v Warren (1994) The Times Law Rep, 8 April, CA
(1994) 13 SLR 59 [1994] SLRYB 155
McLaren v Mumford (HM Inspector of Taxes) [1996] BTC 490
(1996) 19 SLR 69; [1996] SLRYB 170
McLeod v UK (1998) Judgment of the Court, 23 September 1998
(1999) 26 SLR 16; [1999] SLRYB 42
McMullen & Sons Limited v Cerrone [1993] EGCS 108
(1993) 10 SLR 58; [1993] SLRYB 155
McNiven v Westmoreland Investments Ltd [1997] BTC 424
(1997) 22 SLR 63; [1997] SLRYB 165
McPherson (appellant) v Rathgael Centre for Children and Young People and Northern Ireland Office (Training Schools Branch) (respondents) [1991] IRLR 206 NICA McPhilemy v Times Newspapers Limited and Others [1999] 3 All ER 775, CA
(1991) 4 SLR 42; [1991] SLRYB 153 (1999) 28 SLR 5; [1999] SLRYB 17
Meadfield Properties Limited v The Secretary of State for the Environment [1994] EGCS 144
(1994) 13 SLR 62 [1994] SLRYB 163
Medforth v Blake [1999] All ER 97, CA
(1999) 28 SLR 60; [1999] SLRYB 168
Mediterranean Freight Services Ltd v BP Oil International Limited (The ‘Fiona’) [1993] LMLN 345 Meilicke v ADV/ORGA FA Meyer (1992) The Times European Law Rep, 20 October Memory Corporation plc and Another v Sidhu and Another (1999) The Times, 3 December Mepstead v DPP [1996] Crim LR 111
(1993) 9 SLR 60 [1993] SLRYB 128 (1993) 8 SLR 37; [1993] SLRYB 95 (2000) 29 SLR 44; [2000] SLRYB 129. (1996) 18 SLR 19; [1996] SLRYB 50
Mercedes Benz AG v Herbert Heinz Horst Leiduck [1995] 2 Lloyd’s Rep 417, PC
(1996) 18 SLR 49; [1996] SLRYB 140
Merck & Co Inc and Others v Primecrown Ltd and Others; Beecham Group plc v Europharm of Worthing Ltd [1997] 1 CMLR 83
(1997) 22 SLR 42; [1997] SLRYB 106
Methodist Secondary School’s Trustees v O’Leary [1992] EGCS 144
(1993) 9 SLR 71; [1993] SLRYB 154
Michael v Ensoncraft Ltd (1991) CSW, 7 February
(1991) 3 SLR 47; [1991] SLRYB 169
Midland Bank Plc v Chart Enterprises [1990] 44 EG 68 Midland Bank v Cooke [1995] 4 All ER 562, CA Millers Wharf Partnership Ltd v Corinthian Column Ltd [1991] 61 P & CR 461 Millman v Ellis (1996) 71 P & CR 158, CA Mills and another v Silver and others (1990) The Times, 13 July
(1991) 3 SLR 20; [1991] SLRYB 67 (1996) 17 SLR 56; [1996] SLRYB 162 (1992) 6 SLR 20; [1992] SLRYB 45 (1997) 22 SLR 61; [1997] SLRYB 160 (1990) 1 SLR 27; [1991] SLRYB 63 211 • STUDENT LAW REVIEW • 2000 YEARBOOK
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C A S E S
Miners v Atkinson (HM Inspector of Taxes) [1997] PTC 32
(1997) 21 SLR 54; [1997] SLRYB 164
Mirage Studios and others v Counter-Feat Clothing Co Ltd and Another [1991] FSR 145
(1992) 6 SLR 50; [1992] SLRYB 121
Mitsui & Co Ltd v Novorossiysk (The ‘Gudermes’) [1993] LMLN 344, CA
(1993) 9 SLR 62; [1993] SLRYB 130
MOD v Ashman [1993] 40 EG 144, CA; MOD v Thompson [1993] 40 EG 148, CA Molyncke AB v Proctor and Gamble Ltd [1992] 4 All ER 47, CA
(1994) 11 SLR 54 (1993) 9 SLR 20; [1993] SLRYB 32
Monmouth Borough Council v Marlog [1994] 44 EG 240, CA
(1995) 14 SLR 53; [1995] SLRYB 168
Monsanto v Tilly and Others (1999) The Times, 30 November
(2000) 30 SLR 41; [2000] SLRYB 101
Moodie v IRC [1990] BTC 328
(1990) 1 SLR 68; [1991] SLRYB 185
Morgan Crucible Co Plc v Hill Samuel Bank Ltd [1991] 1 All ER 148, CA
(1991) 2 SLR 59; [1991] SLRYB 196
Morris v Murray [1990] 3 All ER 901, CA
(1991) 2 SLR 60
Mortgage Corporation v Nationwide Credit Corp [1993] TLR 283
(1993) 10 SLR 54; [1993] SLRYB 148
Mortgage Corporation, The v Shaire and Others [2000] 1 FLR 973, HC
(2000) 31 SLR 66; [2000] SLRYB 174
Mosbaek v Danish Guarantee Institution (1997) The Times European Law Rep, 19 November Motis Exports Ltd v Dampskibsselskabet AF 1912 and Aktieselskabat Dampskibsselskabet Sevndborg (1999) 21 December, CA Mowlem Northern Ltd v Watson [1990] IRLR 500, EAT
(1998) 23 SLR 42; [1998] SLRYB 105 (2000) 30 SLR 58; [2000] SLRYB 154 (1991) 2 SLR 47; [1991] SLRYB 151
Mulder and Others v Council and Commission (1992)
(1992) 7 SLR 37; [1992] SLRYB 97
Mull Shellfish Ltd v Golden Sea Product Ltd
(1992) 7 SLR 30; [1992] SLRYB 70
Muller v Linsley and Mortimer (1994) The Times, 8 December, CA
(1995) 15 SLR 48; [1995] SLRYB 128
Mullin v Richards [1998] 1 WLR 1304, CA
(1998) 25 SLR 67; [1998] SLRYB 180
Mulox IBC Ltd v Geels [1994] IRLR 411 ECJ Murdoch v Glacier Metal Company Limited (1998) The Times, 21 January Murphy v Sawyer-Hoare and Another [1993] 27 EG 127
(1994) 13 SLR 18 [1994] SLRYB 32 (1998) 25 SLR 28; [1998] SLRYB 85 (1993) 10 SLR 57; [1993] SLRYB 155
Murray v Foyle Meats Ltd [1999] IRLR 562, HL
(2000) 29 SLR 30; [2000] SLRYB 81
Murray v United Kingdom (1994) The Times, 1 November
(1995) 14 SLR 19; [1995] SLRYB 45
Murray v Yorkshire Fund Managers Ltd and Another [1998] 2 All ER 1015, CA Museprime Properties v Adhill Properties Ltd (1990) The Times, 13 March
(1999) 26 SLR 39; [1999] SLRYB 103 (1990) 1 SLR 22; [1991] SLRYB 55
N National & Provincial Building Society v Lloyd [1996] 1 All ER 630, CA
(1996) 18 SLR 59; [1996] SLRYB 164
National Justice Compania Naviera SA v Prudential Assurance Co (The ‘Ikarian Reefer’) (1993) The Times, 5 March
(1993) 10 SLR 40; [1993] SLRYB 106
National Rivers Authority v Biffa Waste Services Ltd (1995) The Times, 21 November National Rivers Authority v Welsh Development Agency [1993] EGCS 160 National Rivers Authority v Wright Engineering Company Ltd (1993) The Independent, 19 November National Rivers Authority v Yorkshire Water Services Ltd (1994) The Times, 21 November, HL Nationwide Building Society v Various Solicitors (No 3) (1999) The Times, 1 March, HC Naughton v O’Callaghan [1990] 3 All ER 191 Neath v Hugh Steeper Ltd (1994) The Times European Law Rep, 21 January
(1996) 17 SLR 28; [1996] SLRYB 77 (1993) 9 SLR 37; [1993] SLRYB 73 (1994) 11 SLR 28; [1994] SLRYB 88 (1994) 11 SLR 27; [1994] SLRYB 87; (1995) 14 SLR 30; [1995] SLRYB 87 (1999) 28 SLR 45; [1999] SLRYB 112 (1991) 2 SLR 8; [1991] SLRYB 20 (1994) 12 SLR 50; [1994] SLRYB 115
Nelson v Rye and Another [1996] 2 All ER 186
(1997) 20 SLR 31; [1997] SLRYB 90
Neste Chemicals SA v DK Line SA [1993] 1 LI LR 424
(1993) 10 SLR 14; [1993] SLRYB 33
Nestlé v National Westminster Bank (1992) Times Law Rep, 11 May, CA Netherlands and Van der Wal v Commission (Cases C-174/98P and C-189/98P) (2000) 11 January Neville and Another v Wilson and Others [1996] 3 All ER 171, CA
212 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1993) 8 SLR 32; [1993] SLRYB 82 (2000) 30 SLR 48; [2000] SLRYB 122 (1996) 19 SLR 38; [1996] SLRYB 91
TA B L E
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C A S E S
New England Properties Plc v Portsmouth New Shops Limited and Others [1993] 23 EG 130 Newtherapeutics Ltd v Katz [1990] 3 WLR 1183 Nicholls v Kinsey [1994] EGCS 9 Nicol v DPP (1996) 1 J Civ Lib 75 Nightingale Finances Ltd v Scott and Scott [1997] NPC 161, HC Noirhomme v Walklate [1992] 1 LI LR 427 QBD
(1993) 10 SLR 58; [1993] SLRYB 156 (1991) 2 SLR 12; [1991] SLRYB 35 (1994) 12 SLR 66 (1996) 19 SLR 16; [1996] SLRYB 37 (1998) 23 SLR 58; [1998] SLRYB 154 (1992) 7 SLR 15; [1992] SLRYB 25
Norris (trading as J Davis & Son) v Checksfield (1991) The Times, 23 April, CA
(1991) 4 SLR 46; [1991] SLRYB 162; (1992) 6 SLR 64; [1992] SLRYB 155
Norweb plc v Dixon [1995] 3 All ER 952
(1996) 17 SLR 18; [1996] SLRYB 43
Norwich & Peterborough BS v Steed [1992] 3 WLR 669, CA
(1993) 8 SLR 56; [1993] SLRYB 142
Norwich Union Life Insurance Society v Low Profile Fashions Ltd [1991] NPC, CA
(1992) 6 SLR 62; [1992] SLRYB 154;
Nottingham City Council v Amin (1999) The Times, 2 December, QBD
(2000) 29 SLR 44; [2000] SLRYB 129
Nurdin and Peacock v DB Ramsden and Co (1998) The Times, 14 September
(1999) 26 SLR 55; [1999] SLRYB 166
(1993) 8 SLR 57; [1993] SLRYB 143
Nurdin v Peacock [1999] 1 All ER 941, Ch D
(2000) 29 SLR 12; [2000] SLRYB 31
O Office Angels Ltd v Rainer-Thomas and Another [1991] IRLR 214, CA Oil Property Investment Limited v Olympia & York, Canary Wharf Limited [1993] EGCS 129 Oldham Borough Council v AG [1993] 2 All ER 432, CA Olympia and York, Canary Wharf Limited v Oil Property Investment Limited [1994] 29 EC 121, CA Orinoco Navigation (Cyprus) Ltd v Ecotrade SpA (The Ikariada) [1999] 2 Lloyd’s Rep 365, QBD Overland Shoes Ltd v Schenkers Ltd (1998) The Times, 26 February, CA Overseas Union Insurance v New Hampshire Insurance [1992] 1 LI LR 204 ECJ
(1991) 4 SLR 44; [1991] SLRYB 154 (1993) 10 SLR 58; [1993] SLRYB 156 (1993) 10 SLR 33; [1993] SLRYB 86 (1994) 13 SLR 62 (2000) 29 SLR 52; [2000] SLRYB 153 (1998) 24 SLR 17; [1998] SLRYB 44 (1992) 7 SLR 14; [1992] SLRYB 24
Owen v Elliot (HMIT) [1990] BTC 323, CA
(1990) 1 SLR 68; [1991] SLRYB 185
Owens Bank Ltd v Bracco (No 2) [1994] 2 WLR 759 ECJ
(1995) 15 SLR 15; [1995] SLRYB 39
Owens Bank Ltd v Bracco [1992] 2 WLR 621, HL Owners of, CArgo lately aboard the River Gurara v Nigerian National Shipping Line Ltd (1996) The Times, 6 March
(1991) 4 SLR 8; [1991] SLRYB 37; HL (1992) 7 SLR 15; [1992] SLRYB 25 (1996) 19 SLR 60; [1996] SLRYB 146
Owners of Cargo lately laden aboard the River Gurara v Nigerian National Shipping Line Ltd (1997) The Times, 29 July, CA
(1997) 22 SLR 52; [1997] SLRYB 137
Oxfordshire County Council v M (1993) The Times, 2 November, CA
(1994) 11 SLR 37; [1994] SLRYB 123
P P v P [1991] JP 25, CA
(1991) 2 SLR 40; [1991] SLRYB 125
P v S and Cornwall CC (1996) Judgment of 30 April
(1996) 19 SLR 17; [1996] SLRYB 38
Page v Combined Shipping and Trading Co Ltd [1997] 3 All ER 656, CA
(1998) 23 SLR 8; [1998] SLRYB 19
Page v Smith [1995] 2 All ER 736, HL
(1995) 16 SLR 68; [1995] SLRYB 183
Palk v Mortgage Services funding [1993] 2 All ER 481
(1993) 10 SLR 52; [1993] SLRYB 147
Palmer v Maloney [1998] BTC 106
(1998) 25 SLR 58; [1998] SLRYB 165
Pan Atlantic Insurance Co Ltd and Another v Pine Top Insurance Co Ltd [1994] 3 All ER 581, HL
(1995) 16 SLR 54; [1995] SLRYB 146
Paola Faccini Dori v Recreb Sri (1994) The Times European Law Rep, 4 August
(1994) 13 SLR 46 [1994] SLRYB 117
Paragon Group Ltd v Burnell (1990) The Times, 5 December
(1991) 2 SLR 57; [1991] SLRYB 178
213 • STUDENT LAW REVIEW • 2000 YEARBOOK
TA B L E
O F
C A S E S
Parliament v Council (Tchernobyl) (1990) The Times European Law Rep, 24 May
(1990) 1 SLR 39; [1991] SLRYB 100
PCW Syndicates v PCW Reinsurers (1995)
(1996) 17 SLR 48; [1996] SLRYB 138
Peckham v Ellison (1998) The Times, 4 December
(1999) 26 SLR 55; [1999] SLRYB 166
Peggs and Others v Lamb and Others (1993) The Times, 19 March Pennell v Payne [1995] 2 All ER 592, CA Pepper (HMIT) v Hart and others [1992] BTC 591, HL
(1993) 10 SLR 32; [1993] SLRYB 86 (1995) 16 SLR 62; [1995] SLRYB 164 (1991) 2 SLR 58; [1991] SLRYB 186; HL (1993) 8 SLR 64; [1993] SLRYB 163
Pepper v Hart [1993] 1 All ER 42 Peterkin v Chief Constable of Cheshire (1999) The Times, 16 November
(1998) 24 SLR 28; [1998] SLRYB 73 (2000) 29 SLR 7; [2000] SLRYB 20
Petra Kirsammer-Hack v Sidal [1994] Industrial Relations Law Rep 185
(1995) 14 SLR 37; [1995] SLRYB 111
Phelps v Hillingdon London Borough Council [1999] 1 All ER 421, CA
(1999) 27 SLR 61; [1999] SLRYB 179
Phelps v Hillington LBC; Anderton v Clwyd CC; G (A Minor) v Bromley LBC; Jarvis v Hampshire CC [2000] 3 WLR 776, HL Philips Hong Kong Ltd v Attorney General of Hong Kong (1993) The Times, 15 February, PC Pitt v PHH Asset Management Ltd [1993] 4 All ER 961
(2000) 31 SLR 69; [2000] SLRYB 184 (1993) 9 SLR 27; [1993] SLRYB 48 (1994) 12 SLR 27; [1994] SLRYB 51
Pitts v Hunt [1990] 3 WLR 542
(1990) 1 SLR 74; [1991] SLRYB 196
Plateau Gravel Co Ltd v Penryn Granite Ltd
(1992) 7 SLR 59; [1992] SLRYB 158
Platform Home Loans Ltd v Oyston Shipways Ltd [1999] 2 WLR 518, HL
(1999) 27 SLR 60; [1999] SLRYB 177
Polly Peck International plc (in Administration) v Henry (1998) The Times, 16 December
(1999) 27 SLR 37; [1999] SLRYB 105
Popat v Popat [1991] Fam Law 100
(1991) 3 SLR 37; [1991] SLRYB 127
Potter v Potter [1990] 2 FLR 27, CA
(1990) 1 SLR 48; [1991] SLRYB 123
Powell v Lloyds Bowmaker Limited (1996 unreported)
(1996) 18 SLR 6; [1996] SLRYB 15
Practice Direction (Civil litigation: Case Management) [1995] 1 WLR 262
(1995) 15 SLR 6; [1995] SLRYB 15
Practice Direction (Crime: Antecedents) [1993] 1 WLR 1459 Practice Direction (Crown Court: Evidence: Advice to Defendant) (1995) The Times, 12 April
(1994) 11 SLR 24; [1994] SLRYB 72 (1995) 16 SLR 47; [1995] SLRYB 129
Practice Direction (Crown Court: Plea and Directions Hearings) [1995] 1 WLR 1318
(1995) 16 SLR 32; [1995] SLRYB 75
Practice Direction (Crown Court: Trial of Children and Young Persons) (2000) The Times, 17 February, Lord Chief Justice’s Court
(2000) 30 SLR 30; [2000] SLRYB 76
Practice Direction (Custodial Sentences: Explanation) [1998] 1 WLR 278
(1998) 24 SLR 24; [1998] SLRYB 63
Prebble v Television New Zealand Ltd (1994) The Times Law Rep, 13 July, PC
(1994) 13 SLR 21 [1994] SLRYB 44
Prekookeanska Plovidba v Felstar Shipping Corporation and another (The ‘Carnival’) [1991] LMLN 319
(1992) 6 SLR 54; [1992] SLRYB 128
Prudential Assurance Co Ltd v London Residuary Body (1992) The Times, 23 July, HL
CA (1992) 5 SLR 65; [1992] SLRYB 152; HL (1992) 7 SLR 56; [1992] SLRYB 148
Publishers Association v Commission (Re Net Book Agreements) [1992] 5 CMLR 120
(1993) 8 SLR 35; [1993] SLRYB 94
Purnell Secretarial Services Ltd v Lease Management Services Ltd [1994] CCLR, CA
(1994) 13 SLR 12 [1994] SLRYB 18
Pye Ltd v Graham [2000] 3 WLR 242, HC
(2000) 31 SLR 66; [2000] SLRYB 174
Q Qureshi (appellant) v London Borough of Newham (respondents) [1991] IRLR 264, CA
(1991) 4 SLR 44; [1991] SLRYB 154
R R v Abdul-Hussain and Others [1999] Crim LR 570, CA
(1999) 28 SLR 26; [1999] SLRYB 68
R v Acott [1986] 4 All ER 443, CA
(1997) 20 SLR 20; [1997] SLRYB 53
R v Adams [1993] Crim LR 72, CA
(1993) 9 SLR 32; [1993] SLRYB 58
R v Adomako [1994] 3 All ER 89, HL
(1994) 13 SLR 26; [1994] SLRYB 60
R v Ahluwalia [1992] All ER 889, CA
(1993) 9 SLR 30; [1993] SLRYB 57
R v Aitken [1992] 1 WLR 1006
(1993) 8 SLR 22; [1993] SLRYB 55
214 • STUDENT LAW REVIEW • 2000 YEARBOOK
TA B L E R v Antoine (1999) The Times, 10 May, CA R v Aranguren, R v Aroyewumi, R v Bioshogun, R v Littlefield, R v Gould (Sidney) (1994) The Times, 23 June, CA R v Argent (1996) The Times, 19 December, CA R v Attewell Hughes [1991] WLR 955, CA R v Avon County Council ex p Crabtree (1995) The Independent, 29 November, CA R v Avro plc [1993] Trading Standards Review, April issue, p 22, CA R v Baker and Ward (1999) 2 Cr App R 335, CA R v Ball [1989] Crim LR 730, CA R v Bamborough [1996] Crim LR 744
O F
C A S E S
(1999) 28 SLR 21; [1999] SLRYB 65 (1994) 13 SLR 32 [1994] SLRYB 78 (1997) 21 SLR 38; [1997] SLRYB 112 (1992) 5 SLR 24; [1992] SLRYB 54 (1996) 18 SLR 24; [1996] SLRYB 75 (1993) 10 SLR 9; [1993] SLRYB 17 (2000) 29 SLR 22; [2000] SLRYB 64 (1990) 1 SLR 31 (1997) 20 SLR 18; [1997] SLRYB 50
R v Bartle and the Commissioner of Police for the Metropolis and Others ex p Pinochet; R v Evans and Another and the Commissioner of Police for the Metropolis and Others ex p Pinochet, 25 November 1998, HL R v Bedwellty Justices ex p Williams [1996] 3 WLR 361, HL R v Bentley (1998) The Times, 31 July, CA R v Bett (1998) The Times, 4 November, CA R v Bevelectric Ltd, Broad and Stirling (1992) The Times, 7 September, CA
(1999) 26 SLR 2; [1999] SLRYB 3 (1996) 19 SLR 30; [1996] SLRYB 65 (1998) 25 SLR 42; [1998] SLRYB 115 (1999) 26 SLR 24; [1999] SLRYB 60 (1992) 7 SLR 9; [1992] SLRYB 11
R v Bigby, Attorney General’s Reference (No 12 of 1993) (1993) The Times, 14 October, CA
(1994) 11 SLR 24; [1994] SLRYB 72
R v Bolton Justices ex p Merna (1991) The Times, 26 April
(1991) 4 SLR 58; [1991] SLRYB 182
R v Bow Street Metropolitan Magistrate and Others ex p Pinochet Ugarte (No 2) [1999] 1 All ER 577, HL R v Bowen (1996) The Times, 19 March; [1996] NLJ 442, CA R v Boyes [1992] Crim LR 574, CA R v Brentwood Justices ex p Nicholls (1991) The Independent, 5 July, HL
(1999) 27 SLR 03 [1999] SLRYB 4 (1996) 19 SLR 20; [1996] SLRYB 51 (1992) 7 SLR 24; [1992] SLRYB 59 (1991) 4 SLR 58; [1991] SLRYB 182
R v Brewster and Others (1997) The Times, 4 July, CA
(1997) 22 SLR 29; [1997] SLRYB 67
R v Bristol City Council ex p Everett (1998) The Times, 27 May
(1999) 26 SLR 38; [1999] SLRYB 98
R v Bromell re Coventry Evening Telegraph (1992) NLJ 1232 R v Brown, Laskey, Jaggard, Lucas, Carter and, Cadman (1993) The Times, 12 March, HL
(1993) 8 SLR 15; [1993] SLRYB 40 CA (1992) 6 SLR 24; [1992] SLRYB 56; HL (1993) 9 SLR 32; [1993] SLRYB 58
R v Bryce (1992) The Independent, 1 July, CA
(1992) 7 SLR 40; [1992] SLRYB 107
R v Buckland (2000) The Times, 3 February, CA
(2000) 30 SLR 31; [2000] SLRYB 77
R v Burgess (1991) The Times, 28 March, CA R v Burstow (1996) The Times, 30 July, CA R v C [1992] Crim LR 642, CA
(1991) 3 SLR 25; [1991] SLRYB 79 (1996) 19 SLR 26; [1996] SLRYB 55 (1992) 7 SLR 26; [1992] SLRYB 60
R v, Cairns (1999) The Times, 22 February, CA
(1999) 28 SLR 28; [1999] SLRYB 69
R v, Calladine [1993] Crim LR 980, CA
(1994) 11 SLR 25; [1994] SLRYB 73
R v, Callender [1992] 3 All ER 51, CA
(1992) 7 SLR 24; [1992] SLRYB 59
R v, Caresana [1996] Crim LR 667, CA
(1997) 20 SLR 17; [1997] SLRYB 51
R v, Carrick District Council ex p Shelley (1996) The Times, 15 April
(1996) 19 SLR 36; [1996] SLRYB 81
R v, Carrington [1990] Crim LR 330 R v Chan-Fook (1993) The Times, 19 November, CA R v Cheema (1993) The Times, 5 October, CA
(1990) 1 SLR 45 (1994) 11 SLR 15; [1994] SLRYB 56 (1994) 11 SLR 36; [1994] SLRYB 122
R v Cheshire [1991] 3 All ER 670, CA
(1992) 5 SLR 22; [1992] SLRYB 53
R v Chesterfield Justices Chief Constable of Derbyshire ex p Bramley (1999) 5 November
(2000) 29 SLR 5; [2000] SLRYB 5.
R v Chief Constable of Lancashire ex p Parker and McGrath (1992) 142 NLJ 635 R v Chief Constable of South Wales ex p Merrick (1994) The Times, 17 February, DC R v Chief Constable of Sussex ex p International Trader’s Ferry Limited [1998] 3 WLR 1260; [1999] 1 All ER 186, HL
(1992) 7 SLR 16; [1992] SLRYB 31 (1994) 12 SLR 31; [1994] SLRYB 74 (1999) 26 SLR 4 and 16 [1999] SLRYB 5 and 41
215 • STUDENT LAW REVIEW • 2000 YEARBOOK
TA B L E
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C A S E S
R v Chief Constable of the North Wales Police ex p Thorpe [1998] 3 WLR 57; [1998] 3 All ER 310, CA R v Chief Constable of the RUC ex p Begley (1998), HL
(1998) 25 SLR 3, 10; [1998] SLRYB 5, 39 (1999) 26 SLR 18; [1999] SLRYB 42
R v Chief Constable of West Midlands Police ex p Wiley, R v Chief Constable of Nottinghamshire Police ex p Sunderland (1994) The Times, 15 July, HL R v Chrastny (No 1) [1992] 1 All ER 189, CA R v Christou and R v Wright [1992] 3 WLR 228, CA
(1994) 13 SLR 22 [1994] SLRYB 44 (1992) 6 SLR 26; [1992] SLRYB 58 (1992) 7 SLR 18, 40; [1992] SLRYB 32, 106
R v Christou [1996] 2 WLR 620, HL
(1996) 19 SLR 31; [1996] SLRYB 65
R v Ciannetto [1996] Crim LR 722, CA
(1997) 20 SLR 18; [1997] SLRYB 50
R v Clare, R v Peach (1995) The Times, 7 April, CA R v Clark [1996] Crim LR 448, CA R v Clarke (1995) The Times, 26 December, CA
(1995) 16 SLR 48; [1995] SLRYB 130 (1996) 19 SLR 31; [1996] SLRYB 66 (1995) 15 SLR 48; [1995] SLRYB 127
R v Clarke [1996] Crim LR 824, CA
(1997) 20 SLR 17; [1997] SLRYB 51
R v Clegg [1995] 1 AC 482
(1998) 24 SLR 28; [1998] SLRYB 73
R v Clelland (1991) The Times, 14 March, CA
(1991) 3 SLR 52; [1991] SLRYB 180
R v Clue (1995) The Times, 27 December, CA
(1996) 18 SLR 21; [1996] SLRYB 65
R v Code of Practice Committee of the British Pharmaceutical Industry ex p Professional Counselling Aids Ltd (1990) The Times, 7 November
(1991) 2 SLR 2; [1991] SLRYB 8
R v Cole [1994] Crim LR 582, CA
(1994) 13 SLR 29 [1994] SLRYB 62
R v Coles [1994] Crim LR 820, CA
(1995) 14 SLR 23; [1995] SLRYB 59
R v Commissioners of Inland Revenue ex p Unilever [1996] STC 681, CA
(1997) 20 SLR 10; [1997] SLRYB 36
R v Condron and Another (1996) The Times, 4 November, CA
(1997) 20 SLR 11; [1997] SLRYB 36
R v Constanza (1997) The Times, 31 March; [1997] Crim LR 576, CA
(1997) 22 SLR 23; [1997] SLRYB 57
R v Cornwall County Council ex p Cornwall and Isles of Scilly Guardians ad litem and Reporting Officers Panel (1991) The Times, 20 November, CA
(1992) 5 SLR 48; [1992] SLRYB 113
R v Cowan, R v Gayle, R v Ricciardi (1996) The Times Law Rep, 13 October
(1996) 17 SLR 16, 38; [1996] SLRYB 34, 68, 112
R v CPC (UK) Ltd (1994) The Times, 4 August, CA
(1994) 13 SLR 36 [1994] SLRYB 91
R v Croydon Justices ex p Morgan (1996) The Times, 2 December DC
(1997) 20 SLR 21; [1997] SLRYB 64
R v Da Silva [1990] 1 All ER 29, CA
(1990) 1 SLR 44; [1991] SLRYB 112
R v Daniel (1998) The Times, 10 April
(1998) 25 SLR 12; [1998] SLRYB 41
R v Deakin (1994) The Times, 3 May, CA
(1994) 13 SLR 50 [1994] SLRYB 126
R v Deen (1994) The Times, 10 January, CA
(1994) 12 SLR 52; [1994] SLRYB 125
R v Department for Education and Employment ex p Begbie (1999) LAWTEL, 24 August, CA R v Deputy Governor of Parkhurst ex p Hague (1990) NLJ, 20 July R v Dewsbury Magistrates’ Court ex p K (1994) The Times, 16 March R v Director of the Serious Fraud Office ex p Smith (1991) The Guardian, 13 November R v Dovermoss Ltd (1995) The Times, 8 February, CA
(1999) 28 SLR 3; [1999] SLRYB 7 (1990) 1 SLR 73 (1994) 13 SLR 31 [1994] SLRYB 77 (1992) 5 SLR 12; [1992] SLRYB 30 (1995) 15 SLR 34; [1995] SLRYB 92
R v DPP ex p C (1994) The Times, 7 March, DC
(1994) 12 SLR 31; [1994] SLRYB 73
R v DPP ex p Kebilene and Others; R v DPP ex p Rechachi (1999) The Times, 31 March
(1999) 28 SLR 15; [1999] SLRYB 46
R v Dunford (1990) The Times, 16 March
(1990) 1 SLR 19; [1991] SLRYB 45
R v Effick (1992) 142 NLJ 492
(1992) 7 SLR 16; [1992] SLRYB 32
R v Egan [1992] 4 All ER 470, CA
(1993) 8 SLR 24; [1993] SLRYB 56
R v Eleftheriou (Costas and Lefterakis) (1993) The Independent, 15 February, CA
(1993) 9 SLR 50; [1993] SLRYB 103
R v Ellis [1990] Crim LR 717
(1990) 1 SLR 44; [1991] SLRYB 112
R v Environment Agency and Redland Aggregates ex p Gibson and Leam, unreported, 8 May 1998 R v Environment Agency ex p Petrus Oils Ltd (1999) Env LR 732
216 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1999) 26 SLR 38; [1999] SLRYB 99 (2000) 30 SLR 40; [2000] SLRYB 100
TA B L E
O F
C A S E S
R v Falmouth and Truro Port Health Authority ex p South West Water Ltd (1999) The Times, 6 May, HC R v Falmouth and Truro Port Health Authority ex p South West Water Ltd [2000] 3 All ER 306, CA
(1999) 27 SLR 40; [1999] SLRYB 101 (2000) 31 SLR 40; [2000] SLRYB 101.
R v Fernandes (1995) The Times, 22 April, CA
(1995) 16 SLR 28; [1995] SLRYB 66
R v Flax Bourton Magistrates’ Court ex p Commissioners of Customs and Excise (1996) The Times, 6 February
(1996) 18 SLR 20; [1996] SLRYB 63
R v Football Association of Wales ex p Flint Town United Football Club [1991] COD 44
(1991) 2 SLR 2; [1991] SLRYB 8
R v Funderbuck [1990] 1 WLR 587, CA
(1990) 1 SLR 43; [1991] SLRYB 111
R v Geddes (1996) The Times, 16 July, CA
(1996) 19 SLR 20; [1996] SLRYB 51
R v George and others (1994) The Times, 9 November, CA
(1995) 14 SLR 26; [1995] SLRYB 74
R v Giannetto [1996] Crim LR 722, CA
(1997) 20 SLR 18; [1997] SLRTB 52
R v Gilmour (2000) The Times, 26 June, CA of Northern Ireland
(2000) 31 SLR 31; [2000] SLRYB 69
R v Gloucestershire County Council ex p Barry; R v Lancashire County Council ex p Royal Association for Disability and Rehabilitation [1996] 4 All ER 421
(1997) 22 SLR 3; [1997] SLRYB 3
R v Gomez (1992) The Independent, 4 December, HL
CA (1991) 4 SLR 22; [1991] SLRYB 80;
R v Gotts (1992) The Times, 25 February, HL
CA (1991) 2 SLR 24; [1991] SLRYB 78; HL (1992) 6 SLR 24; [1992] SLRYB 56
HL (1993) 8 SLR 22; [1993] SLRYB 55
R v Governor of Armley Prison ex p Bond and Ward (1990) The Times, 23 November
(1991) 2 SLR 55; [1991] SLRYB 176
R v Governor of Glen Parva Young Offender Institution ex p G (1998) The Times, 24 Jdanuary, DC
(1998) 24 SLR 24; [1998] SLRYB 63
R v Governor of Pentonville Prison and Others ex p Osman (No 4) (1990) The Times, 28 November
(1991) 2 SLR 35; [1991] SLRYB 115
R v Greatrex and Bates [1999] Cr App R 126, CA R v Hamilton (1998) The Times, 25 July, CA
(2000) 29 SLR 25; [2000] SLRYB 66 (1998) 25 SLR 42; [1998] SLRYB 114
R v Hammersmith and Fulham LBC ex p M (1997) The Times, 19 February, CA
(1997) 22 SLR 18; [1997] SLRYB 39
R v Harrow Crown Court ex p Dave (1993) The Times, 20 October, DC
(1994) 11 SLR 23; [1994] SLRYB 70
R v Heath (1994) The Times, 10 February, CA
(1994) 12 SLR 32; [1994] SLRYB 75
R v Heath (1999) The Times, 15 October, CA
(2000) 29 SLR 22; [2000] SLRYB 64
R v Hereford Magistrates’ Court ex p Rowlands and Ingram; R v Harrow Youth Court ex p Prussia (1997) The Times, 17 February
(1997) 21 SLR 21; [1997] SLRYB 65
R v Highbury Corner Justices ex p Watkins (1992) The Times, 22 October
(1993) 8 SLR 39; [1993] SLRYB 101
R v Hilton (1997) The Times, 18 March, CA
(1997) 22 SLR 27; [1997] SLRYB 61
R v Hinks [1998] Crim LR 904, CA
(1999) 27 SLR 22; [1999] SLRYB 63
R v HM Inspector of Taxes and Another ex p Kelly [1991] BTC 387
(1992) 5 SLR 68 [1992] SLRYB 168
R v HM Treasury ex p British Telecommunications plc [1996] 2 CMLR 217; [1996] All ER (EC) 411
(1997) 20 SLR 32; [1997] SLRYB 99
R v Hopkins and Kendrick [1997] Crim LR 359, CA
(1997) 22 SLR 26; [1997] SLRYB 60
R v Horne [1994] Crim LR 584, CA
(1994) 13 SLR 29 [1994] SLRYB 62
R v Horseferry Road Magistrates’ Court ex p R (1996) The Times, 22 February
(1996) 18 SLR 20; [1996] SLRYB 64
R v Hubbard (1991) The Times, 15 January, CA
(1991) 2 SLR 35; [1991] SLRYB 115
R v Humphries (1995) NLJ 14 July, CA
(1995) 16 SLR 24; [1995] SLRYB 62
R v Hyde [1990] 3 All 892, CA
(1991) 2 SLR 23; [1991] SLRYB 77
R v Inner London Youth Court ex p DPP [1996] Crim LR 834 DC
(1997) 20 SLR 21; [1997] SLRYB 64
R v Ireland (1996) The Times, 22 May, CA
(1996) 19 SLR 25; [1996] SLRYB 54
R v Ireland; R v Burstow (1997) The Times, 25 July, HL
(1997) 22 SLR 23; [1997] SLRYB 57
R v Jefferson, Skerritt, Readman and Keogh (1993) The Times, 22 June, CA
(1993) 10 SLR 27; [1993] SLRYB 62
R v JF Alford Transport Ltd, Alford and Payne (1997) The Times, 31 March, CA
(1997) 22 SLR 25; [1997] SLRYB 59
R v Jones [1997] 2 All ER 119
(1997) 22 SLR 19; [1997] SLRYB 39
217 • STUDENT LAW REVIEW • 2000 YEARBOOK
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C A S E S
R v Kassim [1991] Sol Jo LB 101, HL
(1991) 4 SLR 22; [1991] SLRYB 82
R v Kearley [1992] 2 WLR 656, HL
(1992) 7 SLR 39; [1992] SLRYB 105
R v Kearley, R v Harris (1993) The Times, 29 November, CA
(1994) 11 SLR 24; [1994] SLRYB 71
R v Kelbie [1996] Crim LR 802, CA
(1997) 20 SLR 20; [1997] SLRYB 54
R v Kelly (1998) The Times, 21 May, CA
(1998) 25 SLR 20; [1998] SLRYB 57
R v Kennedy [1999] Crim LR 65, CA
(1999) 27 SLR 23; [1999] SLRYB 64
R v Khan (Rungzabe) and Khan (Tahir) [1998] Crim LR 830, CA
(1999) 26 SLR 24; [1999] SLRYB 60
R v Khan (Sultan) (1996) NLJ 1024, HL
(1996) 19 SLR 14; [1996] SLRYB 36
R v Kidd and Others (1997) The Times, 21 July, CA R v Kingston [1994] 3 All ER 353, HL
(1997) 22 SLR 29; [1997] SLRYB 67 CA (1993) 10 SLR 23; [1993] SLRYB 59;
R v Klineberg and Marsden (1998) The Times, 19 November, CA
(1999) 27 SLR 22; [1999] SLRYB 63
R v Ksansal [1992] 3 All ER 844, CA
(1992) 7 SLR 42; [1992] SLRYB 108
R v Lambeth London BC ex p Walters (1993) The Times, 6 October
(1994) 11 SLR 11; [1994] SLRYB 42
R v Le Brun (1991) The Times, 24 July, CA
(1991) 4 SLR 20; [1991] SLRYB 80
R v Legal Aid Board ex p Bruce (1991) The Times, 21 February
(1991) 3 SLR 52; [1991] SLRYB 180
R v Leicester City Justices ex p Barrow (1991) The Times, 9 January
(1991) 2 SLR 55; [1991] SLRYB 176
R v Lewes Crown Court ex p Hill (1990) The Times, 11 December
(1991) 2 SLR 36; [1991] SLRYB 115
R v London Borough of Newham ex p Dada [1995] 1 FLR 842, CA
(1995) 16 SLR 52; [1995] SLRYB 135
R v London Borough of Southwark ex p Campisi, CA, Transcript, 9 July 1998
(1998) 25 SLR 4; [1998] SLRYB 7
R v Lord Saville of Newdigate and Others ex p A and Others [1999] LAWTEL, 29 July
(1999) 28 SLR 2; [1999] SLRYB 6
R v M (Sentence) (1994) The Times, 1 March, CA
(1994) 12 SLR 33; [1994] SLRYB 75
R v Maidstone Crown Court ex p Jodka (1997) The Times, 13 June DC
(1997) 22 SLR 29; [1997] SLRYB 66
R v Manchester City Magistrates’ Court ex p Kaymanesh (1994) The Times, 3 March DC
(1994) 12 SLR 32; [1994] SLRYB 74
R v Manchester Crown Court and Others ex p DPP (1993) The Times, 26 November, HL
(1994) 11 SLR 23; [1994] SLRYB 70
R v Mandair [1994] 2 WLR 700, HL
(1994) 13 SLR 32 [1994] SLRYB 77
R v Mansell (1994) The Times, 22 February, CA
(1994) 12 SLR 33; [1994] SLRYB 76
R v Marshall, Coombes and Eren (1998) The Times, 10 March, CA
(1998) 25 SLR 18; [1998] SLRYB 57
R v Martin [2000] Cr App R 42, CA
(2000) 31 SLR 30; [2000] SLRYB 67
R v Martinez-Tobon (1993) The Times Law Rep, 1 December, CA
(1994) 11 SLR 10; [1994] SLRYB 42
R v Mattey and R v Queeley (1994) The Times, 13 October, CA
(1995) 14 SLR 43; [1995] SLRYB 126
R v McCay [1990] 1 WLR 645, CA
(1990) 1 SLR 45; [1991] SLRYB 112
R v McGarry (1998) The Independent, 23 July, CA
(1998) 25 SLR 25; [1998] SLRYB 76
R v McGranaghan (1991) The Times, 1 November, CA
(1992) 5 SLR 47; [1992] SLRYB 104
R v McKenzie (1992) 142 NLJ 1162, CA
(1992) 7 SLR 18; [1992] SLRYB 33
R v Mellor [1996] Crim LR 743, CA
(1997) 20 SLR 19; [1997] SLRYB 53
R v Merrick [1995] Crim LR 802, CA
(1996) 17 SLR 20; [1996] SLRYB 49
R v Metropolitan Stipendiary Magistrate ex p London Waste Regulation Authority and Berkshire CC v Scott (1993) The Times, 14 January
(1993) 10 SLR 29; [1993] SLRYB 74
R v Milford Haven Port Authority (2000), 16 March, CA
(2000) 31 SLR 41; [2000] SLRYB 103
R v Miller {1996) The Times, 28 November, CA
(1997) 20 SLR 36; [1997] SLRYB 110
R v Miller, Paris and Abdullahi (1992) The Independent, 17 December, CA
(1993) 9 SLR 50; [1993] SLRYB 104
R v Millward [1994] Crim LR 527, CA
(1994) 13 SLR 28 [1994] SLRYB 61
R v Ministry of Agriculture, Fisheries and Food ex p Hedley Lomas (Ireland) Ltd [1996] All ER (EC) 493
(1995) 16 SLR 44; [1995] SLRYB 116; (1997) 20 SLR 33; [1997] SLRYB 100
R v Ministry of Defence ex p Smith and Others (1995) The Times, 13 June
(1995) 16 SLR 18; [1995] SLRYB 47
R v Mir and Beg (1994) unreported, CA
(1995) 14 SLR 23; [1995] SLRYB 60
R v Mitchell (1998) The Times, 7 October
(1999) 27 SLR 21; [1999] SLRYB 62
218 • STUDENT LAW REVIEW • 2000 YEARBOOK
TA B L E R v Morhall (1995) The Times, 21 July, HL
O F
C A S E S
(1993) 10 SLR 24; [1993] SLRYB 60; (1995) 16 SLR 22; [1995] SLRYB 61
R v Morris (1994) The Times, 20 October, CA R v Morris (Clarence Barrington) (1997) The Times, 13 November, CA R v Moynihan [1999] Env LR 26 R v Musell and Others (1991) The Independent, 1 January R v Myers (1997) The Times, 31 July, HL
(1995) 14 SLR 44; [1995] SLRYB 126 (1998) 23 SLR 22; [1998] SLRYB 53 (2000) 30 SLR 40; [2000] SLRYB 100 (1991) 2 SLR 56; [1991] SLRYB 177 (1997) 22 SLR 45; [1997] SLRYB 113
R v N (1998) The Times, 13 February
(1998) 25 SLR 12; [1998] SLRYB 40
R v Ngan (1997) The Times, 24 July, CA
(1997) 22 SLR 28; [1997] SLRYB 62
R v North and East Devon Health Authority ex p Coughlan (1998) The Times, 29 December; (1998) LAWTEL, 11 December R v North West Lancashire Health Authority ex p A, D and G (1999) LAWTEL, 26 February
(1999) 27 SLR 4; [1999] SLRYB 5 (1999) 27 SLR 4; [1999] SLRYB 6
R v Nottingham Magistrates’ Court ex p Davidson [2000] Crim LR 114, DC
(2000) 30 SLR 30; [2000] SLRYB 76
R v Nottingham Magistrates’ Court ex p Furnell and Another (1995) The Times, 18 December
(1996) 18 SLR 21; [1996] SLRYB 64
R v O’Brien (1995) The Times, 14 April, CA
(1995) 16 SLR 26; [1995] SLRYB 64
R v Ofori R v Tackie (1993) The Times, 17 November, CA
(1994) 11 SLR 24; [1994] SLRYB 71
R v Oliver (1995) The Times, 6 December, CA
(1996) 18 SLR 21; [1996] SLRYB 64
R v Owino [1995] Crim LR 743
(1996) 17 SLR 19; [1996] SLRYB 48
R v P [1991] 3 All ER 337, HL
(1991) 4 SLR 31; [1991] SLRYB 116
R v Parker [1997] Crim LR 760, CA
(1998) 23 SLR 22; [1998] SLRYB 53
R v Parliamentary Commissioner for Standards ex p Al Fayed [1998] 1 All ER 93, CA R v Pommel, unreported, 16 October 1998, CA
(1998) 24 SLR 3; [1998] SLRYB 4 (1999) 26 SLR 44; [1999] SLRYB 122
R v Pommell (1995) The Times, 22 May, CA
(1995) 16 SLR 27; [1995] SLRYB 65
R v Powell and Daniel (1995) The Times, 2 June, CA
(1995) 16 SLR 26; [1995] SLRYB 64
R v Powell; R v English [1997] 4 All ER 545, HL
(1998) 23 SLR 20; [1998] SLRYB 51
R v Preddy and Slade [1996] 3 WLR 255; [1996] 3 All ER 481, HL
(1995) 16 SLR 28; (1996) 19 SLR 22; [1995] SLRYB 66; [1996] SLRYB 52
R v R [1991] 4 All ER 481, HL
(1992) 5 SLR 24; [1992] SLRYB 54 (1998) 24 SLR 28; [1998] SLRYB 73
R v Rai (1999) The Times, 10 November, CA
(2000) 29 SLR 24; [2000] SLRYB 65
R v Reardon [1999] Crim LR 392
(1999) 28 SLR 21; [1999] SLRYB 65
R v Reid [1992] 3 All ER 673, HL
(1993) 8 SLR 20; [1993] SLRYB 54
R v Ribbans and Others (1994) The Times, 25 November, CA
(1995) 14 SLR 26; [1995] SLRYB 74
R v Richardson (1998) The Times, 6 April, CA
(1998) 25 SLR 20; [1998] SLRYB 57
R v Richardson and Irwin [1999] 1 Cr App Rep 392, CA
(1999) 28 SLR 28; [1999] SLRYB 69
R v Richardson Texeira Dean and Tredwin (1994) The Times, 18 March, CA
(1994) 12 SLR 34; [1994] SLRYB 76
R v Richens [1983] 4 All ER 877, CA
(1994) 12 SLR 30; [1994] SLRYB 59
R v Roberts (1992) The Independent, 22 October, CA
(1993) 8 SLR 23; [1993] SLRYB 56
R v Rook [1993] All ER 955, CA
(1993) 10 SLR 24; [1993] SLRYB 60
R v Rozeik [1996] 3 All ER 281, CA
(1996) 19 SLR 24; [1996] SLRYB 53
R v Saunders (1995) The Times, 28 November R v Savage, DPP v Parmenter [1991] 3 WLR 914, HL
(1996) 17 SLR 14, 40; [1996] SLRYB 32, 113 (1992) 5 SLR 25; [1992] SLRYB 54
R v Scarlett [1993] 4 All ER 629, CA
(1994) 11 SLR 16; [1994] SLRYB 56
R v Secretary of State for Defence ex p Smith and Others (1995) The Times Law Rep, 6 November
(1996) 17 SLR 15; [1996] SLRYB 33
R v Secretary of State for Employment ex p Equal Opportunities Commission [1994] 2 WLR 409, HL
(1994) 13 SLR 49 [1994] SLRYB 120
R v Secretary of State for Foreign Affairs ex p Rees Mogg [1993] NLJ 2253
(1993) 10 SLR 18; [1993] SLRYB 43
219 • STUDENT LAW REVIEW • 2000 YEARBOOK
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R v Secretary of State for Social Security ex p Joint Council for the Welfare of Immigrants; R v Secretary of State for Social Security ex p B (1996) 146 NLJ 985, CA
(1996) 19 SLR 13; [1996] SLRYB 35
R v Secretary of State for the Environment ex p Kingston upon Hull City Council and Bristol City Council and Woodspring DC (1996) The Times, 31 January
(1996) 18 SLR 25; [1996] SLRYB 78
R v Secretary of State for the Environment ex p Royal Society for the Protection of Birds (1995) The Times, 10 February, HL
(1995) 15 SLR 32; [1995] SLRYB 90
R v Secretary of State for the Environment ex p Royal Society for the Protection of Birds (1996) The Times, 2 August R v Secretary of State for the Environment ex p Watson, unreported, 21 July 1998, CA R v Secretary of State for the Environment ex p Avon County Council [1991] COD 137 R v Secretary of State for the Environment ex p Davies (1990) The Times, 5 November, CA R v Secretary of State for the Environment ex p Hammersmith and Fulham LBC and Others [1990] 3 WLR 898, HL R v Secretary of State for the Home Department ex p Amnesty International and Others (2000) Lawtel, 31 January; Lawtel, 15 February
(1997) 20 SLR 27; [1997] SLRYB 83 (1998) 25 SLR 27; [1998] SLRYB 84 (1991) 3 SLR 4; [1991] SLRYB 10 (1991) 2 SLR 21; [1991] SLRYB 66 (1991) 2 SLR 3; [1991] SLRYB 9 (2000) 30 SLR 4; [2000] SLRYB 5
R v Secretary of State for the Home Department and Another ex p Norney and Others (1995) The Times, 6 October
(1996) 17 SLR 14; [1996] SLRYB 33
R v Secretary of State for the Home Department ex p Chahal (1993) The Times, 27 October
(1994) 11 SLR 11; [1994] SLRYB 42
R v Secretary of State for the Home Department ex p Fire Brigades Union and Others (1994) The Times, 10 November
(1995) 14 SLR 19; [1995] SLRYB 45
R v Secretary of State for the Home Department ex p Flynn (1995) The Times, 20 July
(1995) 16 SLR 43; [1995] SLRYB 115
R v Secretary of State for the Home Department ex p Hindley (1997) The Times, 19 December; Transcript 18 December 1997 R v Secretary of State for the Home Department ex p Hindley [2000] 2 All ER 385, HL R v Secretary of State for the Home Department ex p Launder (1996) The Times, 29 October R v Secretary of State for the Home Department ex p Manning and Another [2000] 3 WLR 463 R v Secretary of State for the Home Department ex p Marchon [1993] 1 CMLR 207 R v Secretary of State for the Home Department ex p McQuillan (1994) The Independent, 23 September R v Secretary of State for the Home Department ex p Oladehinde [1990] 3 WLR 797 R v Secretary of State for the Home Department ex p Pierson (1995) The Times, 29 November
(1998) 24 SLR 3; [1998] SLRYB 3 (2000) 31 SR 3; [2000] SLRYB 6 (1997) 20 SLR 12; [1997] SLRYB 38 (2000) 31 SLR 3; [2000] SLRYB 6 (1993) 9 SLR 48; [1993] SLRYB 97 (1995) 14 SLR 19; [1995] SLRYB 45 (1991) 2 SLR 3; [1991] SLRYB 9 (1996) 17 SLR 14; [1996] SLRYB 33
R v Secretary of State for the Home Department ex p Pierson [1997] 3 All ER 577, HL; [1997] 3 WLR 492, HL
(1997) 22 SLR 3, [1997] SLRYB 67
R v Secretary of State for the Home Department ex p Simms and Another [1999] 3 All ER 400, HL
(1999) 28 SLR 2; [1999] SLRYB 44
R v Secretary of State for the Home Department ex p Stafford [1998] 3 WLR 372, HL
(1998) 25 SLR 4; [1998] SLRYB 6
R v Secretary of State for the Home Department ex p Thompson (1996) 146 NLJ 786
(1996) 19 SLR 13; [1996] SLRYB 35
R v Secretary of State for the Home Department ex p Venables; R v Secretary of State for the Home Department ex p Venables and Thompson [1997] 3 All ER 97; 3 WLR 23, HL
(1997) 22 SLR 29, [1997] SLRYB 67
R v Secretary of State for the Home Departmentt ex p Simms and Another [1998] 2 All ER 491
(1998) 25 SLR 10; [1998] SLRYB 40
R v Secretary of State for the Home Dept ex p Simms and Another [1999] 3 All ER 400, HL
(1999) 28 SLR 14; [1999] SLRYB 44
R v Secretary of State for the Home Department and the Governor of Frankland Prison ex p Zulfiquar (1995) The Times, 26 July
(1995) 16 SLR 17; [1995] SLRYB 46
R v Secretary of State for Trade and Industry ex p Duddridge and Others (1994) The Independent 4 October
(1995) 14 SLR 31; [1995] SLRYB 88
220 • STUDENT LAW REVIEW • 2000 YEARBOOK
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C A S E S
R v Secretary of State for Transport ex p Factortame and Others (No 5) (1998) The Times, European Law Rep, 28 April
(1998) 25 SLR 40; [1998] SLRYB 109
R v Secretary of State for Transport ex p Blackett [1992] JPL 1041
(1993) 8 SLR 28; [1993] SLRYB 71
R v Secretary of State for Transport ex p Factortame Ltd and Others (No 2) [1990] 3 CMLR 375; 3 WLR 818
(1991) 2 SLR 30; [1991] SLRYB 99
R v Secretary of State for Transport, Ex parte Factortame Ltd and Others (1990) The Times European Law Rep, 20 June
(1990) 1 SLR 38; [1991] SLRYB 99
R v Sefton Borough Council ex p Help the Aged (1997) The Times, 17 April R v Self [1992] 3 All ER 476, CA R v Setz-Dempsey, R v Richarson (1993) The Times, 20 July
(1997) 22 SLR 4; [1997] SLRYB 4 (1992) 7 SLR 24; [1992] SLRYB 58 (1993) 10 SLR 42; [1993] SLRYB 108
R v Shaw [1994] Crim LR 365, CA
(1994) 13 SLR 28 [1994] SLRYB 61
R v Shrewsbury Crown Court, ex parte Venables [1994] Crim LR 61, DC
(1994) 12 SLR 8; [1994] SLRYB 17
R v Shrewsbury Magistrates’ Court ex p Simon Dudley Ltd [1996] CCLR 22 R v Sihota; R v Gurm (1991) The Times, 25 November, CA R v Slack [1989] 3 WLR 513, CA R v Smith (Morgan Jones) (1998) The Times, 29 July R v Smurthwaite; R v Gill (1993) The Times, 5 October, CA R v Solicitor General ex p Taylor (1995) The Times, 14 August
(1996) 18 SLR 8; [1996] SLRYB 16 (1992) 5 SLR 44; [1992] SLRYB 103 (1990) 1 SLR 31 (1998) 25 SLR 18; [1998] SLRYB 56 (1994) 11 SLR 35; [1994] SLRYB 122 (1995) 16 SLR 17; [1995] SLRYB 46
R v Special Adjudicator ex p Kandasamy (1994) The Times, 11 March
(1994) 13 SLR 21 [1994] SLRYB 43
R v Stewart [1995] 3 All ER 159, CA
(1995) 16 SLR 25; [1995] SLRYB 63
R v Sulman and Prentice; R v Adomako; R v Holloway (1993) The Times, 1 May, CA
(1993) 10 SLR 26; [1993] SLRYB 61
R v Tabassum (2000) The Times, 26 May, CA
(2000) 31 SLR 30; [2000] SLRYB 68
R v Teeside Magistrates’ Court ex p Bujnowski [1997] Crim LR 51
(1997) 21 SLR 21; [1997] SLRYB 65
R v Telford Justices ex p B (1991) The Independent, 15 February
(1991) 3 SLR 53; [1991] SLRYB 181
R v Thornton (1991) The Independent, 30 July, CA R v Tosti [1997] Crim LR 746 R v Tower Hamlets LBC ex p Thrasyvalou [1991] COD 123
(1991) 4 SLR 20; [1991] SLRYB 79 (1998) 23 SLR 20; [1998] SLRYB 51 (1991) 3 SLR 4; [1991] SLRYB 10
R v Ullah Khan [1993] Crim LR 982, CA
(1994) 11 SLR 25; [1994] SLRYB 72
R v Wainfur [1996] Crim LR 574, CA
(1997) 20 SLR 22; [1997] SLRYB 64
R v Warner and Another (1992) The Times, 16 November, CA
(1993) 8 SLR 40; [1993] SLRYB 103
R v Watts [1998] Crim LR 833, CA
(1999) 26 SLR 26; [1999] SLRYB 61
R v Weightman (1990) The Times, 8 November, CA R v Wheeler (1990) The Times, 5 May, CA
(1991) 2 SLR 34; [1991] SLRYB 114 (1991) 2 SLR 8, 24; [1991] SLRYB 20, 77
R v Wheelhouse [1994] Crim LR 756, CA
(1995) 14 SLR 24; [1995] SLRYB 60
R v Whybrow R v Saunder (1994) The Times, 14 February, CA
(1994) 12 SLR 32; [1994] SLRYB 75
R v Wilson (1996) The Times, 5 March, CA
(1996) 18 SLR 18; [1996] SLRYB 50
R v Wood Green Crown Court ex p Howe (1991) The Times, 8 March
(1991) 3 SLR 52; [1991] SLRYB 180
R v Wood [1996] Crim LR 916, CA
(1997) 21 SLR 22; [1997] SLRYB 66
R v Woollin (1998) 22 July, unreported, HL
(1998) 25 SLR 17; [1998] SLRYB 55
R v X, R v Y, R v Z [1990] Crim LR 515, CA R v Yorkshire Water Services Ltd (1994) The Times, 19 July, CA R v Z [1990] 3 WLR 113, CA
(1990) 1 SLR 43 (1994) 13 SLR 35 [1994] SLRYB 90 (1990) 1 SLR 43
R v Z [2000] 3 WLR 117; [2000] 3 All ER 285, HL
(2000) 31 SLR 52; [2000] SLRYB 130
RA Securities Ltd v Mercantile Credit Co Ltd [1994] 44 EG 242
(1995) 14 SLR 54; [1995] SLRYB 169
Radio Telefis Eireann and Independent Television Publications Ltd v Commission (Magill TV Guide) [1995] 4 CMLR 718
(1995) 16 SLR 46; [1995] SLRYB 117
Rainbow Estates v Tokenhold [1998] 2 All ER 860
(1998) 25 SLR 55; [1998] SLRYB 157
221 • STUDENT LAW REVIEW • 2000 YEARBOOK
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O F
C A S E S
Rantzen v Mirror Group Newspapers Ltd [1993] 3 WLR 953, CA Re A and W [1992] 2 FLR 154, CA Re Accession of the Community to the European Human Rights Convention (1996) The Times European Law Rep, 16 April Re Adams (deceased) [1990] 2 All ER 97
(1994) 11 SLR 57; [1994] SLRYB 173 (1992) 7 SLR 36; [1992] SLRYB 116 (1996) 19 SLR 48; [1996] SLRYB 109 (1990) 1 SLR 70
Re Arrows Ltd (1992) The Independent, 16 November
(1993) 8 SLR 38; [1993] SLRYB 101
Re B [1992] 2 FLR 1
(1992) 7 SLR 44; [1992] SLRYB 115
Re Barings plc [1998] 1 All ER673
(1998) 24 SLR 10; [1998] SLRYB 30
Re Blackspur Group plc; Re Atlantic Computer plc [1997] 2 BCLC 96
(1997) 22 SLR 17; [1997] SLRYB 30
Re C (1990) The Independent, 3 October, CA Re Celtic Extraction and Re Bluestone Chemicals (1999) The Times, 6 August, CA
(1991) 2 SLR 40; (1991) 4 SLR 35; (1999) 27 SLR 38; [1999] SLRYB 99 (2000) 30 SLR 41; [2000] SLRYB 101
Re Citro (a bankrupt) (1990) NLJ 27 July, CA Re Dale (deceased) [1993] 4 All ER 129 Re Dawes and Henderson (Agencies) Ltd [1997] BCLC 329
(1990) 1 SLR 60; [1991] SLRYB 160 (1994) 11 SLR 30; [1994] SLRYB 100 (1997) 22 SLR 16; [1997] SLRYB 29
Re Dennis (a bankrupt) [1995] 3 All ER 171, CA
(1995) 16 SLR 61; [1995] SLRYB 163
Re Drexel Burnham Lambert Pension Plan [1995] 1 WLR 32
(1995) 15 SLR 40; [1995] SLRYB 100
Re Duxbury’s Settlement Trusts [1995] 3 All ER 145, CA
(1996) 17 SLR 31; [1996] SLRYB 87
Re Goodchild (1997) The Times, 12 May, CA
(1997) 22 SLR 39; [1997] SLRYB 95
Re Green Environmental Industries Ltd and John Moynihan (1997) The Times, 9 October, CA
(1998) 23 SLR 31; [1998] SLRYB 79
Re H (A Minor) (1990) The Independent, 24 November
(1991) 2 SLR 41; [1991] SLRYB 126
Re H [1996] 2 All ER 391, CA
(1996) 19 SLR 10; [1996] SLRYB 26
Re Harrods (Buenos Aires) Ltd [1991] 4 All ER 334, CA
(1992) 5 SLR 10; [1992] SLRYB 22
Re Healing Research Trustee Co Ltd [1992] 2 All ER 481
(1992) 7 SLR 59; [1992] SLRYB 158
Re Hobley, deceased (1997) The Times, 16 June
(1997) 22 SLR 38; [1997] SLRYB 94
Re J (1992) The Times, 12 November
(1993) 8 SLR 42; [1993] SLRYB 117
Re Jones, deceased; Jones v Midland Bank Trust Company Ltd and Others (1997) The Times, 29 April, CA
(1997) 22 SLR 38; [1997] SLRYB 94
Re K (A Minor) (Custody) [1990] 2 FLR 64
(1990) 1 SLR 49; [1991] SLRYB 124
Re Living Images Ltd [1996] BCLC 438
(1996) 19 SLR 11; [1996] SLRYB 27
Re M (A Minor) [1994] 3 WLR 558, HL
CA (1994) 11 SLR 40; [1994] SLRYB 129; HL (1994) 13 SLR 52 [1994] SLRYB 129
Re Mirror Group (Holdings) Limited (1992) The Times, 12 November Re N (A Minor) (1997) The Times, 11 October, CA Re O [1992] 2 FLR 7 Re P (Minors) [1990] Fam Law 399 Re Palmer (deceased) (a debtor) [1994] 3 All ER 835, CA
(1993) 8 SLR 58; [1993] SLRYB 151 (1997) 21 SLR 39; [1997] SLRYB 119 (1992) 7 SLR 43; [1992] SLRYB 114 (1991) 2 SLR 41; [1991] SLRYB 126 (1995) 14 SLR 52; [1995] SLRYB 161; (1995) 15 SLR 61; [1995] SLRYB 163
Re Park House Properties Ltd [1997] 2 BCLC 530
(1998) 23 SLR 13; [1998] SLRYB 26
Re Polly Peck plc [1996] 2 All ER 433
(1996) 19 SLR 10; [1996] SLRYB 27
Re R (1991) The Times, 31 July, CA
(1991) 4 SLR 35; [1991] SLRYB 129
Re R [1993] 2 FLR 757
(1994) 11 SLR 41; [1994] SLRYB 129
Re Ratcliffe, deceased (1999) The Times, 19 March, HC
(1999) 28 SLR 42; [1999] SLRYB 110
Re Richborough Furniture Ltd [1996] BCLC 507
(1996) 19 SLR 11; [1996] SLRYB 27
Re Schuppan (No 2) [1997] BCLC 256
(1997) 22 SLR 15; [1997] SLRYB 28
Re Segelman (deceased) [1995] All ER 676
(1996) 17 SLR 30; [1996] SLRYB 86
Re Smith; Smith v Smith [1991] NLJ 309, CA
(1991) 3 SLR 38; [1991] SLRYB 128
222 • STUDENT LAW REVIEW • 2000 YEARBOOK
TA B L E
Re Verby Print for Advertising Ltd [1998] 2 BCLC 23
O F
C A S E S
(1999) 26 SLR 14; [1999] SLRYB 30
Re Wilmott Trading; Re Wilmott Trading (No 2) (1999) The Times, 28 April; (1999) The Times, 17 June
(1999) 27 SLR 38; [1999] SLRYB 99
Record v Bell (1990) The Times, 21 December
(1991) 2 SLR 18, 19; [1991] SLRYB 57, 63
Red Sea Insurance Co Ltd v Bouygues SA [1994] 3 All ER 749, PC
(1995) 14 SLR 16; [1995] SLRYB 35
Redmond-Bate v DPP (1999) The Times, 28 July
(1999) 28 SLR 16; [1999] SLRYB 47
Reeves v Commissioner of Police of the Metropolis [1998] 2 WLR 401, CA
(1998) 24 SLR 62; [1998] SLRYB 173
Reeves v Commissioner of Police of the Metropolis [1999] 3 WLR 363, HL
(1999) 28 SLR 61; [1999] SLRYB 180
Regina v Adams (1996) The Times, 9 May, CA
(1996) 19 SLR 49; [1996] SLRYB 115
Regina v Bow Street Magistrates’ Court ex p Choudhury (1990) The Times, 10 April
(1990) 1 SLR 18; [1991] SLRYB 44
Regina v Clerkenwell Metropolitan Stipendiary Magistrate ex p the Telegraph and Others (1992) The Times, 22 October
(1993) 8 SLR 16; [1993] SLRYB 41
Regina v Deputy Governor of Parkhurst prison and others ex p Hague; Weldon v Home Office (1991) The Times, 25 July, HL
(1991) 4 SLR 12; [1991] SLRYB 49
Regina v Doheny; Regina v Adams (1996) The Times, 14 August, CA
(1996) 19 SLR 50; [1996] SLRYB 117
Regina v Gibson and Sylveire (1990) The Times, 12 July
(1990) 1 SLR 18; [1991] SLRYB 44
Regina v Jackson (1996) The Times, 21 May, CA
(1996) 19 SLR 49; [1996] SLRYB 116
Regina v Secretary of State for the Home Department ex p Brind and Others [1990] 1 All ER 469
(1990) 1 SLR 20; [1991] SLRYB 46
Republic of India v Indian Steamship Co Ltd [1993] 1 LI LR 387, HL
(1993) 10 SLR 16; [1993] SLRYB 34
Revill v Newbery [1996] 1 All ER 291, CA
(1996) 18 SLR 62; [1996] SLRYB 173
Reynolds v Times Newspapers Ltd [1998] 3 WLR 862, CA
(1999) 26 SLR 62; [1999] SLRYB 175
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 HL
(2000) 29 SLR 5; [2000] SLRYB 18 (2000) 29 SLR 62; [2000] SLRYB 178
Rhone v Stephens [1994] 2 All ER 65, HL
CA (1993) 10 SLR 56; [1993] SLRYB 148; HL (1994) 13 SLR 58 [1994] SLRYB 153
Ringway Roadmarking Ltd v Adbruf Ltd [1998] 2 BCLC 625
(1999) 27 SLR 12; [1999] SLRYB 33
Roach (appellant) v CSB (Moulds) Ltd (respondent) [1991] IRLR 200
(1991) 4 SLR 44; [1991] SLRYB 154
Rogan v Woodfield Building Services Limited [1994] EGCS 145
(1994) 13 SLR 63
Roquette Frères SA v Hauptzollamt Geldern, Judgment of the Court of Justice, not yet reported, 26 April 1994
(1994) 13 SLR ? [1994] SLRYB 118
Rous v Mitchell (1990) 11 PLB 641
(1991) 2 SLR 51; [1991] SLRYB 168
Rowan v Dann 64 P & CR 202 [1992] Court of Appeal
(1993) 8 SLR 57; [1993] SLRYB 143
Royal Bank of Scotland v Etridge (1998) The Times, 17 August, CA; Dunbar Bank v Nadeem [1998] 3 All ER 876, CA; Cooke v National Westminster Bank plc (1998) The Times, 27 July
(1998) 25 SLR 32, 56; [1998] SLRYB 96, 158
Royal Bank of Scotland v Etridge [1997] 3 All ER 628, CA
(1997) 22 SLR 60; [1997] SLRYB 159
Royal Brunei Airlines Sdn Bhd v Tan (1995) The Times, 29 May PC
(1995) 16 SLR 41; [1995] SLRYB 103
Royal Society for the Protection of Birds v Secretary of State for Scotland (1999) The Times, 14 December Royscot Leasing Ltd (and three other appellants) v Commissioners of Customs and Excise (1998) The Times European Law Rep, 23 November, CA Royscot Trust Ltd v Rogerson [1991] 3 All ER 294, CA Ruxley Electronics and Construction Ltd v Forsyth [1995] 3 All ER 268, HL
(2000) 30 SLR 39; [2000] SLRYB 99 (1999) 26 SLR 43; [1999] SLRYB 116 (1991) 4 SLR 16; [1991] SLRYB 58 (1995) 16 SLR 21; [1995] SLRYB 55
S S v S [1991] Fam Law 27, CA SA Coppée Lavalin NV v Ken-Ren Chemicals and Fertilizers Ltd (in liquidation in Kenya; Voest-Alpine AG v Ken-Ren Chemicals and Fertilizers Ltd (in liquidation in Kenya) [1995] 1 AC 38, HL
(1991) 2 SLR 40; [1991] SLRYB 126
(1995) 16 SLR 54; [1995] SLRYB 146
223 • STUDENT LAW REVIEW • 2000 YEARBOOK
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C A S E S
SA SNL-Sucal v Hag AG (1991) The Times European Law Rep, 7 January
(1991) 2 SLR 33; [1991] SLRYB 105
Sargeant v National Westminster Bank plc (1990) The Times, 10 May, CA
(1990) 1 SLR 34; [1991] SLRYB 86
Saunders v United Kingdom (1994) The Independent, 30 September
(1995) 14 SLR 42; [1995] SLRYB 125
Saunders v United Kingdom (1996) The Times, 18 December
(1997) 21 SLR 36; [1997] SLRYB 111
Savage v Hoddinott (1997) 6 February, CA (unreported)
(1997) 22 SLR 45; [1997] SLRYB 113
Savva and Savva v Hussein (1997) 73 P & CR 150, CA
(1997) 21 SLR 50; [1997] SLRYB 157
Scally and others v Southern Health and Social Services Board and Another (1991) The Times, 24 October, HL
(1992) 5 SLR 60; [1992] SLRYB 140
Schelde Delta Shipping BV v Astarte Shipping Ltd (The Pamela) [1995] 2 Lloyd’s Rep 249
(1996) 17 SLR 46; [1996] SLRYB 136
Scottish Midland Co-operative Society Ltd (appellants) v Cullion (respondent) [1991] IRLR 261, Court of Session Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1993] 4 All ER 456, HL Seaconsar Far East v Bank Markazi Jombouri Islami Iran (1996) 20 December
(1991) 4 SLR 45; [1991] SLRYB 155 (1994) 12 SLR 12; [1994] SLRYB 28 (1997) 21 SLR 43; [1997] SLRYB 135
Secretary of State for Employment ex p Equal Opportunities Commission [1994] 2 WLR 409, HL
(1994) 13 SLR 21 [1994] SLRYB 43
Secretary of State for Scotland and Greater Glasgow Health Board (appellants) v Wright and Hannah (respondents) [1991] IRLR 187, EAT, Scotland
(1991) 4 SLR 42; [1991] SLRYB 153
Secretary of State for the Environment and Another v, CAmbridge CC (1992) The Times, 12 February
(1992) 6 SLR 62; [1992] SLRYB 153
Secretary of State for Trade and Industry v Barnett [1998] 2 BCLC 64
(1999) 26 SLR 14; [1999] SLRYB 30
Secretary of State for Trade and Industry v Bottrill, CA
(1999) 28 SLR 10; [1999] SLRYB 34
Secretary of State for Trade and Industry v Davies (No 2) 2 BCLC 317, CA
[1998] 23 SLR 13; [1998] SLRYB 26
Secretary of State for Trade and Industry v Gash [1997] BCLC 341
(1997) 22 SLR 16; [1997] SLRYB 29
Secretary of State for Trade and Industry v Ivens [1997] 2 BCLC 334
(1998) 23 SLR 13; [1998] SLRYB 26
Sen v Headley [1991] NLJ, 22 March, CA
(1990) 1 SLR 70;, CA (1991) 3 SLR 46; [1991] SLRYB 161
Shanks and McEwan (SouthernWaste Services) v Environment Agency (1997) The Independent, 17 October
(1998) 24 SLR 31; [1998] SLRYB 83
Shanks and McEwan (Teeside) Ltd v The Environment Agency (1997) The Times, 28 January
(1997) 22 SLR 35; [1997] SLRYB 85
Shanks McEwan (Midlands) Ltd v Wrexham Maelor Borough Council (1996) The Times, 10 April
(1996) 19 SLR 35; [1996] SLRYB 80
Sharples v Halford and Others (1991) The Times, 9 October, EAT
(1992) 5 SLR 46; [1992] SLRYB 104
Shearson Lehman Hutton v Maclaine Watson & Co (No 2) [1990] 3 All ER 723 Sheppard and Another (Trustees of the Woodland Trust) v Inland Revenue Commissioners (No 2) [1993] BTC 113 Shevill v Presse Alliance [1992] 2 WLR, CA Shtun v Zalejska [1996] 1 WLR 1270 Simmons v Dobson [1991] 1 WLR 720, CA Sinclair v Lee [1993] All ER 926 Singh v Bhasin and Another (1998) The Times, 21 August Sirdar v Army Board (Case C-272/97) [1999] All ER (EC) 928; [1999] 3 SMLR 559 Skilton v Sullivan (1994) The Times, 25 March, CA Skipton Building Society v Clayton (1993) 66 P & CR 223, CA Slater v Finning Ltd [1996] 3 All ER 398, HL
(1991) 2 SLR 6; [1991] SLRYB 19 (1994) 11 SLR 55; [1994] SLRYB 168 (1992) 7 SLR 14; [1992] SLRYB 25 (1997) 20 SLR 3; [1997] SLRYB 6 (1991) 4 SLR 18; [1991] SLRYB 69 (1994) 11 SLR 29; [1994] SLRYB 99 (1998) 25 SLR 31; [1998] SLRYB 95 (2000) 30 SLR 49; [2000] SLRYB 123 (1994) 13 SLR 25 [1994] SLRYB 53 (1994) 11 SLR 50; [1994] SLRYB 152 (1996) 19 SLR 8; [1996] SLRYB 17
Sledmore v Dalby (1996) P & C 196, CA
(1996) 19 SLR 66; [1996] SLRYB 165
Smith (HM IT) v Abbott and related appeals [1993] BTC 179, CA
(1992) 5 SLR 68; [1992] SLRYB 168; (1993) 10 SLR 60; [1993] SLRYB 164
Smith (HMIT) v Schofield (1992) The Times, 6 February, CA
(1990) 1 SLR 68; [1991] SLRYB 185;
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CA (1992) 6 SLR 72; [1992] SLRYB 169 Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management Ltd) [1994] 4 All ER 225, CA
(1995) 14 SLR 22; [1995] SLRYB 53
Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1996] 3 WLR 1051, HL
(1997) 20 SLR 14; [1997] SLRYB 43
Smith v Ainger (1990) The Times, 5 June, CA
(1990) 1 SLR 73
Smith v Baron (1991) The Times, 1 February
(1991) 2 SLR 56; [1991] SLRYB 178
Smith v Draper [1991] 11 PLB 58
(1992) 5 SLR 20; [1992] SLRYB 44
Smithkline Beecham Biologicals SA v Connaught Laboratories Inc (1999) The Times, 13 July, CA
(1999) 28 SLR 48; [1999] SLRYB 125
Soames-Forsythe Properties Ltd v Tesco Stores Ltd [1991] EGCS 22
(1991) 3 SLR 48; [1991] SLRYB 169
Solo Kleinmotoren GmbH v Boch [1994] ECR-1 2237, ECJ
(1995) 15 SLR 15; [1995] SLRYB 39
Sonntag v Waidmann (1993) The Independent, 24 May, ECJ
(1993) 10 SLR 14; [1993] SLRYB 33
South Hams District Council v Shough (1992) The Independent, 3 December, CA
(1993) 9 SLR 71; [1993] SLRYB 154
South Lakeland District Council v Secretary of State for the Environment (1992) The Times, 3 February, HL Southern Water Authority v Nature Conservancy Council [1992] 3 All ER 481, HL
(1992) 6 SLR 28; [1992] SLRYB 69 (1993) 8 SLR 26; [1993] SLRYB 70
Southwark LBC v Mills [1999] 3 WLR 939, HL
(2000) 29 SLR 63; [2000] SLRYB 179
Southwood v Attorney General (2000) The Times, 18 July, CA
(2000) 31 SLR 44; [2000] SLRYB 115
Southwood and Another v Attorney General (1998) The Times, 26 October
(1999) 26 SLR 40; [1999] SLRYB 104
Sovereign Leasing Limited v Silver Crest Furniture [1997] CCLR 76, QBD Sovereign Leasing Ltd v Ali
(1997) 22 SLR 12; [1997] SLRYB 21 (1992) 6 SLR 7; [1992] SLRYB 9
Spiro v Glencrown Properties Ltd [1990] NLJ, 14 December
(1991) 2 SLR 48; [1991] SLRYB 160
Spring v Guardian Assurance plc [1994] 3 All ER 129, HL
(1994) 13 SLR 65 [1994] SLRYB 174
St Albans City and District Council v International Computers Ltd (1996) The Times, 14 August, CA
(1996) 19 SLR 19; [1996] SLRYB 45
St Paul Fire and Marine Insurance Co (UK) Ltd v McDowell Constructors Ltd and Others [1995] 2 Lloyd’s Rep 116, CA
(1996) 17 SLR 48; [1996] SLRYB 138
Stafford v Lee (1993) 65 P & CR 172, CA
(1994) 11 SLR 48; [1994] SLRYB 151
Standard Chartered Bank v Pakistan National Shipping Corp (No 2) (2000) 27 July, CA
(2000) 31 SLR 60; [2000] SLRYB 156
State Bank of India v Sood [1997] 1 All ER 169, CA
(1997) 21 SLR 49; [1997] SLRYB 155
Steeples v Lea [1998] 1 FLR 138, CA
(1998) 24 SLR 36; [1998] SLRYB 93
Stein v Blake [1998] 1 All ER 724
(1998) 24 SLR 11; [1998] SLRYB 31
Stevens v Head [1993] 67 ALJR 343, HC of Australia
(1994) 12 SLR 16; [1994] SLRYB 30
Stevenson v Rogers [1999] 1 All ER 613, CA
(1999) 27 SLR 19; [1999] SLRYB 55
Stewart Gill Ltd v Horatio Myer & Co Ltd [1992] 2 All ER 257, CA Stocznia Gdansk SA v Latvian Shipping Co and Others [1998] 1 All ER 883, HL
(1992) 7 SLR 8, 19; [1992] SLRYB 10, 39 (1998) 25 SLR 8; [1998] SLRYB 22
Stoke-on-Treat City Council and Another v B & Q plc (1992) The Times European Law Rep, 17 December
(1993) 9 SLR 47; [1993] SLRYB 96
Stour Valley Builders v Stuart (1993) The Independent, 9 February, CA
(1993) 10 SLR 8; [1993] SLRYB 16
Stovin v Wise [1996] 3 All ER 801, HL Stubbings v Webb [1993] 1 All ER 322, HL Sucre Export SA v Northern River Shipping Ltd (The Sormovskiy 3068) [1995] TLR 49 Surrey County Council v Bredero Homes Ltd (1993) The Times, 16 April, CA Swami v Faria and Simiya Al Sabah (1990) January (unreported)
(1996) 19 SLR 70; [1996] SLRYB 174 (1993) 9 SLR 74; [1993] SLRYB 169 (1996) 17 SLR 46; [1996] SLRYB 136 (1993) 10 SLR 21; [1993] SLRYB 51 (1990) 1 SLR 73
Swindle and Others v Harrison and Others [1997] 4 All ER 705, CA
(1998) 23 SLR 35; [1998] SLRYB 89
Swinney and Another v Chief Constable of the Northumbria Police [1996] 3 All ER 449, CA
(1997) 20 SLR 54; [1997] SLRYB 168
Swithland Motors Ltd v Peck [1991] Crim LR 386
(1992) 6 SLR 6; [1992] SLRYB 9
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T Tv United Kingdom; V v United Kingdom, Applications 24724/94 and 24888/94 (1999) ECHR Tait Consibee (Oxford) Ltd v Tait [1997] 2 BCLC 349, CA Tankstation ‘t Heukske, unreported, Judgment of 2 June 1994 Target Holdings Ltd v Redferns and Another [1995] 3 All ER 785, HL Target Home Loans Ltd v Clothier [1994] 1 All ER 439, CA Targett v Torfaen Borough Council [1991] EGCS 125
(2000) 30 SLR 3; [2000] SLRYB 4 (1998) 23 SLR 14; [1998] SLRYB 28 (1995) 15 SLR 42; [1995] SLRYB 112 (1996) 17 SLR 32; [1996] SLRYB 87 (1994) 12 SLR 65; [1994] SLRYB 153 (1992) 6 SLR 64; [1992] SLRYB 155
Taylor v Dickens [1997] TLR 587, HC
(1998) 24 SLR 56; [1998] SLRYB 155
Taylor v Hurley, 23 October 1998, CA
(1999) 26 SLR 58; [1999] SLRYB 170
Telnikoff v Matusevitch [1991] 4 All ER 817, HL Ten Oever v SGBS (1993) The Times European Law Rep, 12 October Tesco Stores Ltd v Brent London Borough Council [1993] 2 All ER 718 DC Thamesmead Town v Allotey, unreported, 13 January 1998, CA Thanet District Council v Kent County Council (1993) Env Law No 3 & 4 p 73 Thatcher v Douglas (1996) NLJ 1 March, CA
(1992) 6 SLR 76; [1992] SLRYB 180 (1994) 12 SLR 49; [1994] SLRYB 114 (1993) 10 SLR 8; [1993] SLRYB 16 (1998) 25 SLR 54; [1998] SLRYB 156 (1994) 12 SLR 40; [1994] SLRYB 90 (1996) 18 SLR 58; [1996] SLRYB 163
The ‘Berge Sund’ [1991] LMLN 320
(1992) 6 SLR 52; [1992] SLRYB 128
The Al Battani [1993] 2 LL LR 219
(1994) 12 SLR 12; [1994] SLRYB 28
The Anna H (1994) The Independent, 8 September, CA
(1995) 14 SLR 15; [1995] SLRYB 35
The Atlantic Emperor (No 2) [1992] 1 LL LR 624, CA The Civil Jurisdiction and Judgments Act 1982 (Amendment) Order 1993 The Delfini (Enichem Anic SpA et AL v Ampelos Shipping Co Ltd) [1990] Lloyd’s Rep 252, CA
(1993) 8 SLR 10; [1993] SLRYB 29 (1993) 10 SLR 12; SLRYB 35 (1990) 1 SLR 52; [1991] SLRYB 132
The Eras Eil Actions [1992] 1 LL LR 670, CA
(1993) 8 SLR 12; [1993] SLRYB 30
The Lakhta [1992] 2 LL LR 269
(1993) 8 SLR 10; [1993] SLRYB 29
The Mahkutai (1996) The Times, 24 April, PC The Mayor and Burgesses of London Borough of Hounslow v Minchinton [1997] 74 P & CR 221, CA
(1996) 19 SLR 18, 58; [1996] SLRYB 44, 143 (1998) 23 SLR 58; [1998] SLRYB 154
The Nile Rhapsody [1992] 2 Ll LR 399
(1993) 8 SLR 12; [1993] SLRYB 30
The Observer and the Guardian v United Kingdom; The Sunday Times v United Kingdom (1991) The Times, 27 November
(1992) 5 SLR 12; [1992] SLRYB 30
The Sargasso [1994] 3 All ER 180, CA
(1994) 13 SLR 19 [1994] SLRYB 33
The Star Texas [1993] 2 LI LR 445 (CA)
(1994) 12 SLR 15; [1994] SLRYB 30
The Texaco Melbourne [1994] 1 Ll LR 473, HL;
(1995) 14 SLR 18; [1995] SLRYB 37
The Times European Law Rep, 16 April
(1996) 19 SLR 48; [1996] SLRYB 109
Themehelp Ltd v West and Ors [1995] 4 All ER 215, CA Thompson; Hsu v Metropolitan Police Commissioner [1997] 2 All ER 762 Three Rivers District Council and Others v Governor and Company of the Bank of England (1996) The Times, 8 January
(1996) 17 SLR 47; [1996] SLRYB 137 (1997) 22 SLR 20; [1997] SLRYB 40 (1995) 14 SLR 32; (1996) 18 SLR 23, 30, 39 [1995] SLRYB 100; [1996] SLRYB 74, 115
Thynne, Wilson and Gunnel v United Kingdom (1990) The Times, 10 December
(1991) 2 SLR 15; [1991] SLRYB 48
Times, Newspapers and Another v Attorney General (1991) The Times, 12 April, HL
(1991) 4 SLR 11; [1991] SLRYB 48
Tinsley v Milligan (1993) 3 WLR 126, HL
CA (1992) 5 SLR 31; (1992) 7 SLR 22; [1992] SLRYB 47, 75; HL (1993) 10 SLR 20, 52; [1993] SLRYB 50, 146
Tolstoy Miloslavsky v United Kingdom (1995) The Times, 19 July
(1995) 16 SLR 18; [1995] SLRYB 47
Torfaen Borough Council v B & Q plc [1990] 1 CMLR 337
(1990) 1 SLR 40; [1991] SLRYB 101
Torvald Klaveness A/S v Ami Corporation (The ‘Gregos’) [1992] LMLN 321
(1992) 6 SLR 52; [1992] SLRYB 126
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(1995) 16 SLR 56; [1995] SLRYB 147 Tower Hamlets LBC v Miah [1992] 2 WLR 761, CA
(1992) 7 SLR 54; [1992] SLRYB 147
Toyota (GB) Ltd v North Yorkshire County Council [1998] Trading Standards Rev 16, CA
(1998) 25 SLR 9; [1998] SLRYB 23
Toys ‘R’ Us v Globetrotter CC (1994) The Times, 14 February
(1994) 12 SLR 8; [1994] SLRYB 17
Trafalgar House Construction (Regions) Ltd v General Surety and Guarantee Co Ltd [1995] 3 All ER 737, HL
(1996) 17 SLR 46; [1996] SLRYB 136
Trammo Gas & Petrochemicals Ltd v Geogas SA (The ‘Baleares’) [1992] LMLN 341, CA
(1993) 8 SLR 50; [1993] SLRYB 128
Trane (UK) Ltd v Provident Mutual Life Association [1994] EGCS 121
(1995) 14 SLR 54; [1995] SLRYB 169
Triad Shipping Co v Stellar Chartering and Brokerage Inc (The Island Archon) [1995] 1 All ER 595, CA
(1995) 16 SLR 57; [1995] SLRYB 148
Tribe v Tribe (1995) The Times, 14 August, CA
(1995) 16 SLR 39; [1995] SLRYB 102
Truk (UK) Ltd v Tokmakidis GmbH [2000] 1 Lloyd’s Rep 543
(2000) 31 SLR 17; [2000] SLRYB 35
Trustee of the property of FC Jones and Sons (a firm) v Jones (1996) The Times, 13 May, CA
(1996) 19 SLR 40; [1996] SLRYB 92
Trustees of Dennis Rye Pension Fund v Sheffield City Council [1997] 4 All ER 747, CA
(1998) 24 SLR 4; [1998] SLRYB 4
TSB Bank plc v Camfield [1995] 1 All ER 951, CA
(1995) 15 SLR 22; [1995] SLRYB 54; (1995) 16 SLR 64; [1995] SLRYB 165
Tuck v Baker [1990] 32 EG 46, CA
(1991) 2 SLR 19; [1991] SLRYB 64
Tudor Grange Holdings Ltd v Citibank NA (1991) The Times, 30 April
(1991) 4 SLR 15; [1991] SLRYB 57
Turner v Wandsworth London Borough Council (1994) 25 EG 148
(1994) 13 SLR 62 [1994] SLRYB
TWD Textilwerke v Germany [1994] ECR 1-833
(1995) 14 SLR 37; [1995] SLRYB 110
U Union Eagle Ltd v Golden Achievements Ltd (1997) The Times, 7 February PC
(1997) 21 SLR 32; [1997] SLRYB 90
Union Royale Belge des Sociétés du Football Associations, RC Liègois and Unions des Associations Européenes de Football (UEFA) and Others v Bosman and Others [1996] 1 CMLR 645; [1996] All ER (EC) 97
(1996) 19 SLR 47; [1996] SLRYB 108
Union Transport Plc v Continental Lines SA [1992] 1 WLR 15, HL
(1992) 6 SLR 12; [1992] SLRYB 23
United Bank of Kuwait v Sahib and Others [1995] 2 All ER 973 United Dominions Trust v Shellpoint Trustees (1993) TLR 169, CA
(1995) 16 SLR 63; [1995] SLRYB 164 (1993) 9 SLR 67; (1993) 10 SLR 56; [1993] SLRYB 148
United Mizrahi Ltd v Doherty and Others (1997) The Times, 15 December
(1998) 24 SLR 36; [1998] SLRYB 93
Uratempt Ventures Ltd v Collins (1999) 2 December, CA; Jal Mehta v Royal Bank of Scotland (1999) The Times, 25 January, HC; Carroll v Manek (1999) The Times, 18 August, HC
(2000) 29 SLR 58; [2000] SLRYB 170
V Van Haarlam v Kasner [1992] 64 P & CR 214
(1993) 8 SLR 56; [1993] SLRYB 142
Van Rooij v Dagelijks Bestuur van het Waterschep de Dommel and Nederhof v Dijksgraaf en Hoogheemraden Van Het (Cases Nos 231/97 and 232/97) (1999) The Times, 15 October; [1999] ENDS 298 – 46/47
(2000) 30 SLR 39; [2000] SLRYB 98
Varsani v Jesani [1998] 3 All ER 272, CA Vaux Group Plc v Lilley and Another [1991] 61 P & CR 446 Veness and Chalkey v National Union of Public Employees [1991] IRLR 76 Vernon v Bosley (No 1) [1997] 1 All ER 577, CA Vince and Another v Chief Constable of Dorset (1992) The Times, 17 September Vitol SA v Norelf Ltd (1993) The Times, 20 May
(1999) 26 SLR 40; [1999] SLRYB 103 (1992) 5 SLR 20; [1992] SLRYB 44 (1991) 3 SLR 44; [1991] SLRYB 152 (1997) 21 SLR 59; [1997] SLRYB 170 (1993) 8 SLR 16; [1993] SLRYB 41 (1993) 10 SLR 21; [1993] SLRYB 52
Vitol SA v Norelf [1995] 3 All ER 971, CA
(1996) 17 SLR 8; (1996) 18 SLR 53
Vitol SA v Norelf [1996] 3 All ER 193, HL
(1996) 19 SLR 8, 18, 59; [1996] SLRYB 18, 43, 144
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Vivarajah and Four Others v the UK (1991) The Guardian, 6 November
(1992) 5 SLR 12; [1992] SLRYB 29
Vodaphone Cellular Ltd v Shaw (HM Inspector of Taxes) [1995] BTC 206
(1995) 16 SLR 65; [1995] SLRYB 173
Vodaphone Cellular Ltd v Shaw [1997] BTC 247
(1997) 22 SLR 64; [1997] SLRYB 166
Voyce v Voyce (1991) 62 P & R 290, CA Vroege and Fisscher [1994] IRLR 651, 662
(1992) 6 SLR 34; [1992] SLRYB 79 (1995) 15 SLR 43; [1995] SLRYB 114
W W v Essex County Council [1998] 3 WLR 534, CA
(1998) 25 SLR 62; [1998] SLRYB 176
W v Essex County Council [2000] 2 WLR 601, HL
(2000) 31 SLR 71; [2000] SLRYB 185
WG Clark (Properties) Ltd v Dupre (Properties) Ltd [1991] EGCS 64 Wagamama Ltd v City Centre Restaurants plc [1995] FSR 713 Wai Yu-Tsang v R [1992] Crim LR 425 PC Wain v, CAmeron (HMInspector Taxes) [1995] BTC 299 Walby v Eastern Health and Social Services Board and Another [1991] IRLIB 432, CA (Northern Ireland) Walford v Miles [1992] 1 All ER 453, CA
(1991) 4 SLR 50; [1991] SLRYB 171 (1996) 18 SLR 48; [1996] SLRYB 131 (1992) 7 SLR 26; [1992] SLRYB 61 (1996) 17 SLR 57; [1996] SLRYB 169 (1992) 5 SLR 60; [1992] SLRYB 140 (1990) 1 SLR 22; [1991] SLRYB 55; CA (1992) 6 SLR 19; [1992] SLRYB 39
Walker v Geo H Medlicott & Son (a Firm) (1998) The Times, 25 November, CA Walker v Simon Dudley Ltd (1997) The Times, 3 January Ward-Lee v Linehan [1993] EGCS 21, CA Warde v Warnke [1990] EGCS 103 Warwickshire County Council v Johnson [1993] 1 All ER 299, HL Waters v Commissioner of Police of the Metropolis [2000] 1 WLR 1607, HL Watson v National Children’s Home and Others (1995) The Times, 31 October
(1999) 26 SLR 60; 27 SLR 37; [1999] SLRYB 106 and 174 (1997) 21 SLR 5; [1997] SLRYB 16 (1993) 9 SLR 70; [1993] SLRYB 153 (1991) 3 SLR 22; [1991] SLRYB 68 (1993) 9 SLR 10; [1993] SLRYB 14 (2000) 31 SLR 72; [2000] SLRYB 186 (1996) 17 SLR 33; [1996] SLRYB 88
Waverley Borough Council v Fletcher [1995] 4 All ER 756, CA
(1996) 17 SLR 59; [1996] SLRYB 172
Webb v EMO Air, Cargo (UK) Ltd (1994) The Times European Law Rep, 15 July
(1994) 13 SLR 48 [1994] SLRYB 119
Webb v Webb [1994] 3 WLR 801 ECJ Weldon v Home Office (1990) The Times, 2 April Westdeutsche Landesbank Girozentrale v Islington Borough Council [1996] 2 All ER 961, HL
(1992) 5 SLR 11; [1992] SLRYB 22; ECJ (1994) 13 SLR 18 [1994] SLRYB 33 (1990) 1 SLR 73 (1997) 20 SLR 30; [1997] SLRYB 89
Western Web Offset Printers Ltd v Independent Media Ltd (1995) The Times, 10 October
(1996) 17 SLR 18; [1996] SLRYB 43
Westminster City Council v Basson (1990) The Times, 23 November
(1991) 2 SLR 48; [1991] SLRYB 161
Westminster City Council v Clarke [1992] 1 All ER 695, HL
(1992) 6 SLR 58, 63; [1992] SLRYB 146, 154
Westmoreland Investments Ltd v Macniven [1998] STC, CA
(1999) 26 SLR 57; [1999] SLRYB 170
Wheeler v JJ Sanders Ltd [1995] 2 All ER 697, CA
(1995) 15 SLR 31; [1995] SLRYB 89; (1995) 16 SLR 61; [1995] SLRYB 163
Whelton Sinclair v Hyland (1991) 1 May (unreported), CA
(1991) 4 SLR 51; [1991] SLRYB 171
White (appellant) v Reflecting Roadstuds Ltd (respondents) [1991] IRLR 331 EAT
(1991) 4 SLR 45; [1991] SLRYB 155
White and Others v Chief Constable of South Yorkshire and Others, unreported, 3 December 1998, HL
(1999) 26 SLR 62; [1999] SLRYB 176
White v The Queen (1998) The Times, 25 September, PC
(1999) 26 SLR 44; [1999] SLRYB 122
Widdowson v Newgate Meat Corporation and Others (1997) Times, Law Rep, 4 December, CA
(1998) 23 SLR 44; [1998] SLRYB 114
Wight and Another v Olswang and Another (1999) The Times, 18 May, CA
(1999) 28 SLR 41; [1999] SLRYB 109
William Sindall plc v Cambridgeshire County Council [1994] 1 WLR 1016, CA Williams and Another v Director of Public Prosecutions [1993] 3 All ER 365
228 • STUDENT LAW REVIEW • 2000 YEARBOOK
(1994) 13 SLR 23 [1994] SLRYB 51 (1993) 10 SLR 40; [1993] SLRYB 107
TA B L E Williams v Natural Life Health Food Ltd [1996] BCLC 288 Williams v Natural Life Health Food Ltd [1997] BCLC 131 Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, HL Williams v Roffey Bros [1990] 1 All ER 512 Williams v Watsons Luxury Coaches Ltd [1990] IRLR 164, EAT Willowgreen Limited v Smithers (1993) The Times, 14 December
O F
C A S E S
(1996) 19 SLR 10; [1996] SLRYB 26 (1997) 22 SLR 15; [1997] SLRYB 28 (1998) 25 SLR 61; [1998] SLRYB 174 (1990) 1 SLR 4; [1991] SLRYB 56 (1990) 1 SLR 55; [1991] SLRYB 148 (1994) 12 SLR 66
Wilson v Best Travel Ltd [1993] 1 All ER 353
(1993) 9 SLR 28; [1993] SLRYB 49
Winn v DPP (1992) 142 NLJ 527
(1992) 7 SLR 16; [1992] SLRYB 32
Woodard v Woodard (1991) The Times, 15 March, CA
(1992) 5 SLR 35; [1992] SLRYB 78
Woolwich Building Society v Dickman and Another [1996] 3 All ER 204, CA
(1996) 19 SLR 65; [1996] SLRYB 164
Worth v Beale [1993] EGCS 135, CA
(1994) 11 SLR 52; [1994] SLRYB 159
Wright v Atlas (Wright) Europe Ltd (unreported), CA
(1999) 27 SLR 12; [1999] SLRYB 33
Wu Koon Tai and Another v Wu Yau Loi (1996) The Times, 25 October, PC
(1997) 20 SLR 30; [1997] SLRYB 89
WWF UK (supported by Sweden as intervener) v Commission of the European Communities (supported by the United Kingdom and France as interveners) (1997) The Times, 26 March
(1997) 22 SLR 35; [1997] SLRYB 86
X X v A and Others (1999) The Times, 6 October, HC
(2000) 29 SLR 39; [2000] SLRYB 112
X v Bedfordshire County Council; M v Newham London Borough Council; E v Dorset County Council [1995] 3 All ER 353, HL
(1995) 16 SLR 67; [1995] SLRYB 182
Y Yip Chiu-cheung v R [1994] 2 All ER 924 PC Yaxley v Gotts [1999] 3 WLR 1217, CA
(1994) 13 SLR 27; [1994] SLRYB 60 (2000) 29 SLR 58; [2000] SLRYB 174
York City and District Travel Ltd v Smith [1990] IRLR 213 EAT
(1990) 1 SLR 56; [1991] SLRYB 150
Yukong Line Ltd of Korea v Randsburg Investment Corporation of Liberia [1996] 2 Lloyd’s Rep 604
(1997) 21 SLR 16; [1997] SLRYB 46
Yukong Line of Korea v Rendsburg Investments Corp of Liberia and Others (No 2) [1998] 4 All ER 82
(1999) 26 SLR 12; [1999] SLRYB 28
Z Zuckerfabrik Suderdithmarschen v Hauptzollamt Itzehoe (1991) The Times European Law Rep, 27 March
(1991) 3 SLR 31; [1991] SLRYB 105
229 • STUDENT LAW REVIEW • 2000 YEARBOOK
