Azimut-Benetti Spa (Benetti Division) -v- Healey – ComC – 03-Sep-10 – Blair J (Bailii, [2010] EWHC 2234 (Comm)) – Contract
The claimant sought summary judgment under a guarantee. The defendant said that the liquidated damages clause under which the claim was made was a penalty clause and unenforceable.
Held: The request for summary judgment was granted: ” the evidence clearly shows that the purpose of the clause was not deterrent, and that it was commercially justifiable as providing a balance between the parties upon lawful termination by the builder. I do not accept the defendant’s submission that the court has to form a view as to the maximum possible loss that the parties would have expected to flow from any determination of the contract and the extent to which the stipulated figure for liquidated damages exceeded that maximum possible loss, and that since it cannot do so without extensive disclosure, and factual and expert evidence, the defendant must be permitted to defend the claim. This was a contract for the construction and sale of a very expensive yacht, aptly described in the evidence as a “super-yacht”. Both parties had the benefit of expert representation in the conclusion of the contract. The terms, including the liquidated damages clause, were freely entered into. As the authorities referred to above show, in a commercial contract of this kind, what the parties have agreed should normally be upheld.”

Cases Cited:
Murray -v- Leisureplay Plc CA 28-7-2005 (Bailii, [2005] EWCA Civ 963, [2005] IRLR 946)
General Trading Company (Holdings) Ltd -v- Richmond Corporation Ltd ComC 3-7-2008 (Bailii, [2008] EWHC 1479 (Comm), [2008] 2 Lloyd’s Rep 475) – Mentioned
Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL 1-7-1914 ([1915] AC 67, Bailii, [1914] UKHL 1)
Lordsvale Finance Plc -v- Bank of Zambia QBD 20-3-1996 (Times 08-Apr-96, [1996] QB 752)
Cine Bes Filmcilik Ve Yapimcilik & Another -v- United International Pictures and Others CA 21-11-2003 ([2003] EWCA Civ 1669, Bailii, [2004] 1 CLC 401)

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Here are some Criminal Law links:

NB and ZD (Para 5 Discretion) Guinea – UTIAC – 18-Aug-10 – Gleeson, Southern SIJJ (Bailii, [2010] UKUT 302 (IAC)) – Immigration
UTIAC The Court of Appeal decided in the present case that a failure by a party to comply with the provisions of the Procedure Rules is an “error of procedure” within the meaning of rule 59, and that rule therefore operates to preserve the validity of steps taken in the proceedings thereafter, unless the Tribunal exercises the discretion therein to order to the contrary.
The power may be exercised even when the point has not been raised by the appellant.
In the exercise of its discretion in relation to rule 23, the Tribunal must consider the nature and extent of the breach and this will entail a consideration of all material factors. These are likely to include:
a. The length of the delay in the context of the strict time-limits under the Rules for filing and serving grounds of appeal, (19 days in a case when the time for appealing was 5 days).
b. The Secretary of State’s action in misinforming the Upper Tribunal that she had complied with the requirements of rule 22(5)(a) as to the date when service had been effected.
c. The Secretary of State’s failure to draw to the attention of the Tribunal her failure to have complied with rule 23(5)(b).
d. Prejudice suffered by the applicant such as the effect of being notified by the Tribunal that the respondent is seeking permission to appeal when the appellant has not yet received the determination, the loss of the opportunity to protest that the Secretary of State’s application is out of time and the effect of the passage of time.
e. Repugnance arising from the Secretary of State’s pursuing for any prolonged period her challenge to the decision of the Tribunal without the successful party being aware of that decision.
f. The merits of the substantive application.
g. The fact that the failure does not prevent a fair hearing is not decisive.

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Seaton -v- Regina – CACD – 13-Aug-10 – Hughes LJ, Rafferty, Maddison JJ (Bailii, [2010] EWCA Crim 1980, [2010] WLR (D) 234, WLRD) – Criminal Practice – Legal Professions
The defendant had been accused of recent fabrication of evidence, having given evidence in court which varied from that given in interview on arrest. The crown had commented on his failure to call his solicitor to give evidence. The defendant said this amounted to an infringement of legal professional privilege.
Held: Wilmot was not authority for any proposition about waiver of professional privilege. The issue was not addressed in that case.
Legal professional privilege is paramount, and no question should be asked to intrude upon it, including asking whether the solicitor had been told the same version as was now being given. The defendant should not be asked to waive his protection. He may however do so voluntarily. To describe what happened between himself and his solicitor is not to waive privilege entirely: “The test is fairness and/or the avoidance of a misleading impression.” Merely saying that he was advised to make no comment does not waive privilege, but seeking to explain that advice may.
In fact in this case the prosecutor had not enquired further and the appeal failed.
Statutes:
Criminal Justice and Public Order Act 1994 s. 34

Cases Cited:
Regina -v- Wilmot CACD 1989 ((1989) 89 Cr App R 341)
Director of Public Prosecutions -v- P HL 1991 ([1991] 93 Crim App R 267, [1991] 2 AC 447)
Regina -v- Derby Magistrates Court Ex Parte B HL 19-10-1995 (Independent 27-Oct-95, Times 25-Oct-95, [1996] AC 487, Bailii, [1995] UKHL 18, [1996] 1 FLR 513, [1996] 1 Cr App R 385, (1995) 159 JP 785, [1996] Fam Law 210, [1995] 3 WLR 681, [1995] 4 All ER 526)
Regina -v- Karen Condron, William Condron CACD 17-10-1996 (Times 04-Nov-96, Bailii, [1996] EWCA Crim 1129, [1997] 1 Cr App R 185)
Regina -v- Bowden (Brian Thomas) CACD 10-2-1999 (Gazette 10-Mar-99, Times 25-Feb-99, Bailii, [1999] EWCA Crim 331, [1999] 1 WLR 823, [1999] 4 All ER 43, (1999) 163 JP 337, [1999] 2 Cr App R 176)
Regina -v- Wishart CACD 2005 ([2005] EWCA Crim 1337)
General Accident Fire and Life Assurance Corporation -v- Tanter 1984 ([1984] 1 WLR 100)
Loizou, Regina -v- CACD 14-7-2006 (Bailii, [2006] EWCA Crim 1719, [2005] 2 CAR 618)
B and Others Russell McVeagh McKenzie Bartleet & Co -v- Auckland District Law Society, Gary J Judd PC 19-5-2003 (PC, Times 21-May-03, Bailii, [2003] UKPC 38, Gazette 03-Jul-03, [2003] 2 AC 736)
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Somerfield Stores Ltd -v- Spring (Sutton Coldfield) Ltd – ChD – 04-Aug-10 – David Cooke J (Bailii, [2010] EWHC 2084 (Ch), [2010] WLR (D) 231) – Landlord and Tenant
The landlord had opposed the renewal of the claimant’s business tenancies saying that it wished to redevelop the sites. Before the matter came to trial, the landlord went into administration, and the tenant sought summary judgment. It now appealed against refusal.
Held: The appeal failed. The date of the hearing at which the necessary intention must be shown to exist is always the date of the substantive trial of the landlord’s ground of objection. The case law pre-dated the availability of summary judgments under the CPR, and ” the essential nature of the summary judgment jurisdiction, which is to determine whether a party has a real prospect of establishing his cause of action (or defence as the case may be) at a future trial date. In most cases of course the facts relied on will have occurred at some previous date, so the issue at the summary judgment hearing in relation to those facts will be whether there is a real prospect that the evidence available at trial will be sufficient to establish that the alleged facts had already occurred. The “real prospect” test is a forward-looking one (as the word “prospect” itself implies), and means that the court is entitled to have regard to evidence that may realistically be expected to emerge between the date of the summary judgment hearing and the trial itself.”
At any summary judgment application the question to be considered is whether, looking forward to the anticipated date of trial, the landlord can show a real prospect of being able to establish the necessary intention at that future date. Insofar as it is necessary to show a reasonable prospect of being able to commence work by reference to a particular date, that date would also have to be determined by reference to the anticipated date of trial.
Statutes:
Landlord and Tenant Act 1954

Cases Cited:
Cunliffe -v- Goodman CA 1950 ([1950] 2 KB 237)
Betty’s Café Ltd -v- Phillips Furnishing Stores Ltd HL 1958 ([1959] AC 20, [1958] 1 All ER 607)
Dutch Oven Ltd -v- Egham Estate and Investment Co Ltd ChD 1968 ([1968] 1 WLR 1483)
Tanfern Ltd -v- Gregor Cameron-MacDonald, Mona Berit Cameron-MacDonald CA 12-5-2000 (Times 17-May-00, Gazette 15-Jun-00, Bailii, [2000] 1 WLR 1311, [2000] EWCA Civ 152, [2000] 2 All ER 801, Bailii, [2000] EWCA Civ 3023, [2000] 1 WLR 1311)
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Drake and another -v- Foster Wheeler Ltd – QBD – 05-Aug-10 – Thornton QC J ([2010] EWHC 2004 (QB), WLRD, [2010] WLR (D) 232) – Personal Injury – Damages
The claimant sought damages for asbestosis. He had been given Hospice care in the period up to his death. A claim was made for the costs of such voluntary care, suggesting a parallel with a claim which might be made by a relative providing voluntary care.
Held: The claim succeeded. The claim was novel, arguing that the defendant should not be able to deduct from damages payable savings made when a third party offered gratuitous charitable care. The claim was in line with established principles and it was unlikely to lead to substantial numbers of claims.

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In the matter of Re D (Statutory Will); VAC -v- JAD and Others – ChD – 16-Aug-10 – Hodge QC J (Bailii, [2010] EWHC 2159 (Ch)) – Health – Wills and Probate
The protected person’s deputy sought authority for making a statutory will for her. An earlier Enduring Power had been found to be a forgery, and a later will was also doubted. The deputy had been appointed. A statutory will had been refused because the master said one was appropriate only where no will existed, and it was not a procedure to be used to challenge existing wills for doubt as to capacity or undue influence.
Held: The application succeeded: “Under section 4(6)(a), one of the relevant factors to be considered by the Court in determining the protected person’s best interests are that person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). A previous will is obviously a relevant written statement which falls to be taken into account by the Court. But the weight to be given to it will depend upon the circumstances under which it was prepared; and if it were clearly to be demonstrated that it was made at a time when the protected person lacked capacity, no weight at all should be accorded to it. Moreover, Parliament has rejected the “substituted judgment” test in favour of the objective test as to what would be in the protected person’s best interests. Given the importance attached by the Court to the protected person being remembered for having done the “right thing” by his will, it is open to the Court, in an appropriate case, to decide that the “right thing” to do, in the protected person’s best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will. ”
Statutes:
Mental Capacity Act 2005 s. 4(6)(a)

Cases Cited:
In re P (Statutory Will) ChD 9-2-2009 (Bailii, [2009] EWHC 163 (Ch), [2010] Ch 33)
In re M; ITW -v- Z & Others FD 12-10-2009 (Bailii, [2009] EWHC 2525 (Fam), (2009) 12 CCL Rep 635, [2009] WTLR 1791)

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A -v- Essex County Council (Rev 2) – SC – 14-Jul-10 – Lord Phillips, President, Lady Hale, Lord Brown, Lord Kerr, Lord Clarke (Bailii, [2010] UKSC 33, [2010] WLR (D) 184, WLRD, UKSC 2009/0065, SC, SC Summary, Bailii Summary) – Human Rights – Education
The claimant, a severely disabled child sought damages, saying that for well over a year, the local authority had made no provision for his education.
Held: The appeal failed. The correct approach had been set in the Lord Grey School case, and the question was “whether A was denied effective access to such educational facilities as the State provides for such pupils. A was only denied effective access if he was deprived of the very essence of the right.” Considerable efforts and money had been provided to attempt to provide interim solutions pending a longer term solution becoming available, and “The interim efforts made by Essex were far from perfect and it is arguable that Essex were both in breach of duty under domestic law in various ways and more generally open to criticism for not doing more than they did but, once one takes account of the fact that what was needed were interim measures pending the long term solution, I do not think that A can succeed at a trial.”
Statutes:
Human Rights Act 1998
European Convention on Human Rights s. A2P1

Cases Cited:
A J S B -v- Essex County Council and others QBD 13-7-2007 (Bailii, [2007] EWHC 1652 (QB)) – At First Instance
A -v- Essex County Council CA 16-4-2008 (Bailii, [2008] EWCA Civ 364, [2009] LGR 182) – Appeal from
Leyla Sahin -v- Turkey ECHR 10-11-2005 ([2006] ELR 73, Bailii, [2005] ECHR 819, (2007) 44 EHRR 5, 44774/98, 19 BHRC 590)
Ali -v- Head Teacher and Governors of Lord Grey School HL 22-3-2006 (Times 27-Mar-06, Bailii, [2006] UKHL 14, 20 BHRC 295, [2006] 2 All ER 457, [2006] ELR 223, [2006] 2 WLR 690, [2006] 2 AC 363)
Orsus And Others -v- Croatia ECHR 16-3-2010 (Bailii, [2010] ECHR 337, 15766/03)
Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-2-1967 (1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, (1968) 1 EHRR 252, Bailii, Bailii, [1968] ECHR 3, [1967] ECHR 1)
Mursel Eren -v- Turkey ECHR 7-2-2006 (60856/00, Worldlii, [2006] ECHR 119, Bailii, (2007) 44 EHRR 28)
Cyprus -v- Turkey ECHR 10-5-2001 (Worldlii, [2001] ECHR 327, 25781/94, Bailii, [2001] ECHR 331, (2002) 35 EHRR 30, (2001) 11 BHRC 45)
Stott (Procurator Fiscal, Dunfermline) and Another -v- Brown PC 5-12-2000 (Times 06-Dec-00, PC, [2001] 2 WLR 817, [2003] 1 AC 681, [2001] 2 All ER 97, [2000] UKPC D3)
Henry Holub and Eva Holub -v- Secretary of State for Home Department CA 20-12-2000 (Bailii, [2000] EWCA Civ 343, [2001] 1 WLR 1359, [2001] ELR 401, [2001] Imm AR 282, [2001] INLR 219)

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O’ Brien -v- Ministry of Justice – SC – 28-Jul-10 – Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Clarke, Sir John Dyson SCJ (Bailii, [2010] UKSC 34, Bailii Summary, SC, SC Summary) – European – Employment
The appellant had worked as a part time judge. He now said that he should be entitkled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office holders paid on a daily fee-paid basis.
Held: The matter required to be referred to the ECJ. “Recorders (and all judges at every level) are subject to terms of service of the sort referred to by Sir Robert Carswell LCJ. Indeed judicial office partakes of most of the characteristics of employment. However, because domestic law cannot readily be disentangled from EU law on this issue the Court prefers to express no concluded view, as to whether judges (as a general class) would qualify as “workers” under the Regulations . .” There is no single definition of “worker” which holds good for all the purposes of Community law, and the effect of Clause 2(1) of the Framework Agreement, read together with Recital (16) of the PTWD, is to make domestic law relevant to the interpretation of the expression “worker”, but domestic law is not to oust or “trump” the principles underlying the EU legislation in such a way as to frustrate them.
Statutes:
Council Directive 97/81/EC of 15 December 1997
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000 No.1551)

Cases Cited:
Marleasing -v- La Comercial Internacional de Alimentación SA ECJ 13-11-1990 (Europa, (1992) 1 CMLR 305, C-106/89, [1990] ECR I-4135, Bailii, [1990] EUECJ C-106/89)
O’Brien -v- Department for Constitutional Affairs CA 19-12-2008 (Bailii, [2008] EWCA Civ 1448, Times, [2009] ICR 593) – Appeal from
Department of Constitutional Affairs -v- O’Brien EAT 22-4-2008 (Bailii, [2008] UKEAT 0139_07_2204) – At EAT
Deborah Lawrie-Blum -v- Land Baden-Wuerttemberg ECJ 3-7-1986 (Europa, C-66/85, R-66/85, Bailii, [1986] EUECJ R-66/85, [1986] ECR 2121)
Perceval-Price, Davey and Brown -v- Department of Economic Development, Department of Health and Social Services and Her Majesty’s Attorney General for Northern Ireland CANI 12-4-2000 (Times 28-Apr-00, Bailii, Bailii, [2000] NICA 9, [2000] NIECA 9, [2000] IRLR 380) – Approved
Percy -v- Church of Scotland Board of National Mission (Scotland) HL 15-12-2005 (Bailii, [2005] UKHL 73, House of Lords, Times 16-Dec-05, [2006] 2 WLR 353, [2006] ICR 134, [2006] IRLR 195, [2006] 2 AC 28)
Martínez Sala -v- Freistaat Bayern ECJ 12-5-1998 (Europa, C-85/96, [1998] ECR 1-2691)
Debra Allonby -v- Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional and Secretary of State for Education and Employment ECJ 13-1-2004 (Europa, C-256/01, Bailii, [2004] EUECJ C-256/01, Europa, [2004] ECR I-00873, [2004] ICR 1328)
Landeshauptstadt Kiel -v- Norbert Jaeger ECJ 9-9-2003 (Europa, C-151/02, Times 26-Sep-03, Bailii, [2003] EUECJ C-151/02, [2004] ICR 1528)
Pfeiffer -v- Deutsches Rotes Kreuz, Kreisverband Waldshut eV ECJ 5-10-2004 (C-399/01, Bailii, [2004] EUECJ C-399/01)
Yolanda Del Cerro Alonso -v- Osakidetza (Servicio Vasco de Salud) (Free Movement Of Persons) ECJ 10-1-2007 (C-307/05, Bailii, [2007] EUECJ C-307/05, [2008] ICR 145)
Istituto nazionale della previdenza sociale (INPS) -v- Tiziana Bruno, Massimo Pettini (Social Policy) ECJ 10-6-2010 (C-395/08, Bailii, [2010] EUECJ C-395/08)
Wippel -v- Peek & Cloppenburg GmbH & Co. KG ECJ 12-10-2004 (Europa, [2005] IRLR 211, Bailii, [2004] EUECJ C-313/02, Europa, C-313/02, [2005] ICR 1604, [2005] 1 CMLR 9)
Christie -v- Department for Constitutional Affairs Department for Work & Pensions EAT 23-7-2007 (Bailii, [2007] UKEAT 0140_07_2307, Times 04-Nov-07, [2007] ICR 1553)

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ZO (Somalia) and Others, Regina (on The Application of) -v- Secretary of State for The Home Department – SC – 28-Jul-10 – Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Kerr, Sir John Dyson SCJ (Bailii, [2010] UKSC 36, WLRD, [2010] WLR (D) 203, Bailii Simmary, SC, SC Summary, UKSC 2009/0151) – Immigration – European
The Direvtive gave certain rights to asylum applicants. The claimants had applied for asylum, and on failing in their applications, renwewed them, claiming the rights under the Directive again. The respondent said that the rights applied only oin a first application.
Held: The applicants still had the benefit of the Directive: “‘an application for asylum’ in the Reception Directive must be interpreted to include a subsequent application made after an original application has been determined and that the term ‘asylum seeker’ should be construed accordingly to include a person who makes such a subsequent application.”
Statutes:
Council Directive 2003/9/EC (the Reception Directive) s. 1

Cases Cited:
ZO (Somalia), Regina (On the Application of) -v- Secretary of State for the Home Department; R (MM (Burma) and another) -v- Secretary of State for the Home Department; R (DT (Eritrea)) -v- Same CA 20-5-2009 (Bailii, [2009] EWCA Civ 442, Times 28-May-09, [2009] WLR (D) 166, WLRD, [2009] 1 WLR 2477) – Appeal from
MM (Somalia) and ZO (Somalia), Regina (on the Application of) -v- Secretary of State for the Home Department Admn 25-6-2008 (Bailii, [2008] EWHC 1604 (Admin)) – At First Instance
NM and others (Lone Women, Ashraf) Somalia CG IAT 31-3-2005 (Bailii, [2005] UKIAT 00076)
FH and Others, Regina (on the Application of) -v- Secretary of State for the Home Department Admn 5-7-2007 (Bailii, [2007] EWHC 1571 (Admin))
CILFIT -v- Ministero Della Sanità ECJ 6-10-1982 (Europa, C-283/81, [1982] ECR I-03415, R-283/81, Bailii, [1982] EUECJ R-283/81, [1982] ECR 3415)

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