Regina v Westminster City Council Ex Parte Ermakov: CA 14 Nov 1995

The applicant, having moved here from Greece, applied for emergency housing. The Council received no reply to its requests for corroboration sent to Greece. Housing was refused, but the officer later suggested that the real reason was that the applicant had accommodation available in Greece. The court considered an affidavit on behalf of the decision-maker explaining that the true reasons for the decision where not those expressed in the decision letter but different reasons set out in the affidavit.
Held: A Local Authority cannot later change the reasons given for a finding of intentional homelessness. The courts are not receptive to ex post facto justification of decisions.
Hutchinson LJ considered the circumstances in which it was appropriate to admit and rely upon evidence adduced for the purpose of explaining or adding to the reasons for a decision made by a decision-maker, and said: ‘The Court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ’s observations in ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lack in clarity. These examples are not intended to the exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction.’
Hutchinson LJ expressed the general principle: ‘While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J’s comments in Ex p Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.’

Judges:

Hutchinson LJ

Citations:

Times 20-Nov-1995, [1996] 2 All ER 302, [1995] EWCA Civ 42, (1996) 28 HLR 819, [1996] COD 391, (1996) 8 Admin LR 389, [1996] 2 FCR 208, (1996) 160 JP Rep 814

Links:

Bailii

Statutes:

Housing Act 1995 64

Jurisdiction:

England and Wales

Citing:

Cited – Westminster City Council v Great Portland Estates plc HL 31-Oct-1984
The House was asked whether the 1971 Act permitted the relevant authorities, by resort to their development plans, to support the retention of traditional industries or was the ambit of the Act such as to permit only ‘land use’ aims to be pursued? . .

Cited by:

Cited – Eston Bernard v London Borough of Enfield CA 4-Dec-2001
The applicant sought review of a decision by the local authority that he was intentionally homeless through a failure to pay his rent. He appealed a rejection of leave to appeal, and his appeal was with regard to the adequacy of the reasons given by . .
Distinguished – Freeserve Com Plc, Regina (on the Application Of) v Customs and Excise Admn 31-Oct-2003
The applicant sought to challenge a decision of the respondent not to charge a US competitor trading within the UK to VAT. They complained that the decision had been affected by irrelevant considerations.
Held: A supplier making supplies from . .
Cited – Richardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
Cited – Wall, Regina (on the Application of) v Brighton and Hove City Council Admn 2-Nov-2004
Application for judicial review, seeking an order quashing a grant of planning permission dated by the defendant for the demolition of an existing house and its replacement by eight self-contained apartments. The notice granting planning permission . .
Cited – Oxfordshire County Council v GB and Others CA 22-Aug-2001
When an appeal was lodged against the decision of the Special Educational Needs Tribunal, it was wrong for that Tribunal later to expand on its reasons, save in exceptional circumstances. Parental preference was not an overriding consideration, . .
Cited – Machado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
Cited – Green, Regina (on the Application of) v South West Strategic Health Authority Admn 28-Oct-2008
The claimant said that whilst resident in a care home, her care should have been paid for as health care under ‘Continuing Health Care.’ She said that the decision maker had failed to comply with the Health Authorities guidelines.
Held: In . .
Applied – Leung v Imperial College of Science, Technology and Medicine Admn 5-Jul-2002
Silber J considered the circumstances in which it was proper to take into account additional evidence surrounding the circumstances in which a decision under challenge had been made. He added to those in Ermakov the issue of whether it would be just . .
Cited – Regina (Ashbrook) v East Sussex County Council CA 20-Nov-2002
The claimant complained that the respondent had failed properly to secure removal of an admitted obstruction to a public footpath. The landowner had applied for a diversion of the footpath, which the respondent recommended for adoption, but the . .
Cited – Clive Rees Associates, Solicitors, Regina (on The Application of) v Swansea Magistrates Court and Another Admn 30-Nov-2011
The claimant solicitors challenged a decision of the respondents to transfer legal aid orders for the representation of clients to a second frm of solicitors.
Held: The court considered the various cases, finding three decisions unlawful and . .
Cited – Nzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.

Housing, Judicial Review

Updated: 09 December 2022; Ref: scu.88304

Regina v Central Criminal Court Ex Parte Guney: CA 2 Feb 1995

A defendant is deemed to have surrendered to court custody when attending as directed; a surety was not estreated when he failed to attend at a later hearing after an adjournment.
Sir Thomas Bingham MR (dissenting) said that there is nothing in the process of arraignment which in law requires, or in fact amounts to, a surrender to the custody of the court.
Sir Peter Gibson LJ said: ‘In my judgment a surrender to the custody of the court occurs when a defendant on bail and under a duty so to surrender is required to attend the court and responds by attending the court and overtly subjecting himself to the directions of the court. This he does at the latest when he is arraigned at the commencement of the trial, but he may do so earlier.’
Sir Michael Mann said that ‘Arraignment provides a clearly identifiable moment of surrender (which may, however, in some cases occur earlier).’

Judges:

Sir Thomas Bingham MR, Sir Peter Gibson LJ, Sir Michael Mann

Citations:

Gazette 08-Mar-1995, Times 03-Feb-1995, Independent 02-Feb-1995, [1995] 1 WLR 576

Statutes:

Bail Act 1946 3, Magistrates’ Courts Act 1980 128

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Central Criminal Court Ex Parte Guney QBD 1-Feb-1994
An arraignment was valid despite non attendance at court, and the surety’s duties were not terminated. Arraignment in absence if defendant is not a surrender to custody for bail. . .
Appealed to – Regina v Central Criminal Court Ex Parte Guney HL 10-May-1996
The defendant was given bail supported by sureties for his attendance. The appellant signed for andpound;1m for his attendance. There was a preparatory hearing at a new court building without cells or a dock. The defendant was present. The surety . .

Cited by:

Appeal from – Regina v Central Criminal Court Ex Parte Guney HL 10-May-1996
The defendant was given bail supported by sureties for his attendance. The appellant signed for andpound;1m for his attendance. There was a preparatory hearing at a new court building without cells or a dock. The defendant was present. The surety . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 09 December 2022; Ref: scu.86313

Regina v Avon County Council Ex Parte Crabtree: CA 15 Nov 1995

Rules of natural justice need not always be followed if the context requires. The scope of the common law rule against bias and its application to the facts of a particular case depends on what the facts are, as does the content of the obligation to act fairly in a particular case

Judges:

Neill LJ

Citations:

Times 29-Nov-1995

Jurisdiction:

England and Wales

Cited by:

Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Administrative

Updated: 09 December 2022; Ref: scu.86070

Nuclear Electric Plc v Bradley (Inspector of Taxes): CA 13 Nov 1995

Income on funds set aside but not allocated for expenditure not trading income

Citations:

Ind Summary 13-Nov-1995

Jurisdiction:

England and Wales

Citing:

Appeal from – Nuclear Electric Plc v Bradley (Inspector of Taxes) ChD 10-Apr-1995
Interest on funds set aside for future costs was trading income-liabilities current. . .

Cited by:

Appeal from – Nuclear Electric Plc v Bradley (Inspector of Taxes) HL 29-Mar-1996
The income from investments set aside to cover future liabilities was not trading income. . .
Lists of cited by and citing cases may be incomplete.

Corporation Tax

Updated: 09 December 2022; Ref: scu.84384

Norglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Etc: CA 6 Dec 1995

An assignment of a cause of action in order to be eligible to apply for Legal Aid is not against public policy. An assignment of a cause of action was not invalid solely on the ground that its purpose was to enable the action to be prosecuted on terms that the company would benefit from success. There was no jurisdiction to make an order for security for costs against Mr and Mrs Rodgers (who had taken the assignment from Norglen Ltd) and it would not in the circumstances be right to make an order against Norglen, which was dropping out of the action.

Judges:

Sir Thomas Bingham M.R., Hobhouse and Aldous L.JJ

Citations:

Independent 12-Jan-1996, Times 06-Dec-1995

Jurisdiction:

England and Wales

Citing:

Distinguished – Advanced Technology Structures Ltd v Cray Valley Products Ltd CA 1993
An assignment of the cause of action should not be recognised or given effect because it was a ‘sham’.
Hirst LJ said that the assignment was: ‘a mere stratagem or device to enable the company to carry on the proceedings, with the support of Mr. . .

Cited by:

Appeal from – Norglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Circuit Systems Ltd (In Liquidation) and Another v Zuken-Redac HL 1-Dec-1997
An assignment of a cause of action by a company in liquidation was valid, even though the dominant purpose was to avoid having to give security for costs, and to get legal aid. In dismissing the argument that the transactions were a device to defeat . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 09 December 2022; Ref: scu.84328

McCullagh v Lane Fox and Partners Ltd: CA 19 Dec 1995

There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott knew, or ought to have known, that his representation was likely to be relied on by Mr. McCullagh. However, he also knew that Mr. McCullagh had the Lane Fox particulars which included both the relevant statement and the disclaimer. In my judgment, the result of this is that the element of proximity was negatived. A reasonable person, appreciating that the statement which he was proposing to rely upon was a statement contained in the particulars and the fact that those particulars also stated that ‘all statements contained in these particulars as to this property are made without responsibility on the part of Lane Fox . . ‘ would understand that there was no assumption of responsibility by Lane Fox. This understanding would be reinforced by paras 3, 4 and 5 of the disclaimer. In my judgment, the disclaimer puts the present case on all fours with the actual decision in Hedley Byrne as explained earlier.’

Judges:

Hobhouse LJ

Citations:

Times 22-Dec-1995, [1996] 1 EGLR 35, [1995] EWCA Civ 8, [1996] PNLR 205

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – McCullagh v Lane Fox and Partners Ltd QBD 25-Jan-1994
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey. . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .

Cited by:

Appealed to – McCullagh v Lane Fox and Partners Ltd QBD 25-Jan-1994
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey. . .
Cited – First National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
Cited – Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.

Agency, Professional Negligence

Updated: 09 December 2022; Ref: scu.83515

Jonathan Alexander Ltd v Proctor: CA 19 Dec 1995

A company represented in proceedings by a director is not a litigant in person, and therefore has no expenses or costs claimable from the other party.
Hirst LJ said: ‘. . the ordinary meaning, as I understand it, of the description ‘litigant in person’, viz an unrepresented individual’.
Peter Gibson LJ said: ‘A litigant in person in ordinary parlance is a party to litigation who represents himself by appearing in court himself. If someone other than himself represents him, then notwithstanding that that other person is his agent, that party is not a litigant in person’.

Judges:

Hirst LJ, Peter Gibson LJ

Citations:

Times 03-Jan-1996, Ind Summary 22-Jan-1996, [1996] 1 WLR 518

Statutes:

Litigants in Person (Costs and Expenses) Act 1975, County Court Rules 1981 Order 38 r17

Jurisdiction:

England and Wales

Cited by:

Distinguished – Andre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Lists of cited by and citing cases may be incomplete.

Company, Costs

Updated: 09 December 2022; Ref: scu.82579

International Bulk Shipping and Services Ltd v President of India and Another: CA 11 Dec 1995

Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had persuaded the arbitrators that the companies were the proper claimants and had commenced the enforcement actions on the same basis. His decision to do so was intended to avoid the possibility that set-offs would be raised in respect of debts owed by associated ship-owning companies if he sued in his own name. When he started the actions, however, the companies had been wound up and thus ceased to exist. The trustee applied, after the limitation period had expired, to have his name substituted for those of the companies pursuant to O. 20 r 5.
Held: Proceedings under name of a dissolved company cannot be revived after limitation period by trustee. Appeal denied.
Evans LJ said: ‘The rule refers to ‘the party intending to sue or.. intended to be sued’. When it is said that the wrong plaintiff has been named, this must be taken as reference to the intention of persons who caused the writ to be issued, rather than of the person in fact named. Those persons in the present case were the trustee or the bankruptcy estate. They were mistaken in thinking that the companies were still in existence and entitled to sue. If they had known the true facts, they would or might well have named the trustee or the bankruptcy estate as sole plaintiff or as a co-plaintiff. But that was a decision as to who the plaintiffs should be, and no doubt for good reasons they chose to assert the companies’ rights under the awards, rather than whatever rights the trustee or the bankrupt estates had acquired.
The rule envisages that the writ was issued with the intention that a specific person should be the plaintiff. That person can often but not invariably be identified by reference to a relevant description. The choice of identity is made by the persons who bring the proceedings. If having made that choice they use the wrong name, even though the name they sue may be that of a different legal entity, then their mistake as to the name can be corrected. But they cannot reverse their original identification of the party who is to sue. This interpretation of the rule derives not only from the phrase ‘correct the name of the party’ but also from the requirement that the mistake must not have been such as to cause any reasonable doubt as to the identity of the person intending to sue.’

Judges:

Evans LJ

Citations:

Ind Summary 11-Dec-1995, [1996] 2 Lloyd’s Rep 474, [1996] 1 All ER 1017

Jurisdiction:

England and Wales

Citing:

Affirmed – International Bulk Shipping and Services Ltd v The Mineral and Metals Trading Company of India; International Bulk Shipping and Services Ltd v The President of India; Himoff Maritime Enterprises Ltd v The President of India ComC 16-Feb-1994
cw Arbitration – award – limitation period – cause of action arising – implied promise to perform award – breach – RSC Order 15 r.6 – misjoinder and non-joinder of party – principles – RSC Order 15 r.6 – joinder . .

Cited by:

Cited – Adelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 09 December 2022; Ref: scu.82399

Inland Revenue Commissioners v Willoughby and Another: CA 6 Jan 1995

Anti-avoidance provisions do not catch a transfer of assets which were located abroad and which made at a time when the taxpayer was a non UK resident.

Citations:

Gazette 08-Mar-1995, Ind Summary 13-Feb-1995, Times 06-Jan-1995

Statutes:

Income and Corporation Taxes Act 1988 739-741

Jurisdiction:

England and Wales

Citing:

Appealed to – Inland Revenue Commissioners v Willoughby HL 16-Jul-1997
Rules which disallowed exemption from tax for the transfer of assets abroad in order to avoid income tax do not apply where the taxpayer is not ordinarily resident here. . .

Cited by:

Appeal from – Inland Revenue Commissioners v Willoughby HL 16-Jul-1997
Rules which disallowed exemption from tax for the transfer of assets abroad in order to avoid income tax do not apply where the taxpayer is not ordinarily resident here. . .
Lists of cited by and citing cases may be incomplete.

Income Tax

Updated: 09 December 2022; Ref: scu.82365

In Re T (A Minor) (Contact Order); In Re T (Adoption: Contact): CA 13 Jan 1995

A contact order which was not strictly necessary should not be made in adoption proceedings. Arrangements for contact should not be ‘imposed’ upon the adoptive parents but should be ‘left to their good sense so that they could be trusted to do what they believe to be in the best interests of their daughter.’ Butler-Sloss LJ indicated that the court could intervene in future and make an order if the adoptive parents were to behave unreasonably

Judges:

Butler-Sloss LJ

Citations:

Times 13-Jan-1995, [1995] 2 FLR 251

Statutes:

Adoption Act 1976

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v X and Others CA 27-May-2010
The LA, the guardian and adoptive parents appealed against an order that they should provide to the parents an annual photograph of the child. They contended that an image should only be made available to be viewed at the authority’s offices . .
Lists of cited by and citing cases may be incomplete.

Children, Adoption

Updated: 09 December 2022; Ref: scu.82219

In Re Mcguckian: QBD 12 May 1999

When applying ex parte to a special commissioner for permission to make an extended time tax assessment, an inspector need not disclose all the circumstances of the case, but only those which were necessary to allow the commissioner to judge whether there was a loss.

Citations:

Times 12-May-1999

Statutes:

Taxes Management Act 1970 41

Jurisdiction:

England and Wales

Income Tax

Updated: 09 December 2022; Ref: scu.82052

In Re M (Minors) (Abduction: Peremptory Return Order): CA 20 Nov 1995

An English court should usually assume that proceedings abroad will provide for a fair hearing. The court refused to admit evidence of the legal system in Dubai and assumed that the wife would receive a fair hearing there.

Citations:

Times 20-Nov-1995, [1996] 1 FLR 478

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 09 December 2022; Ref: scu.82033

In Re G (A Minor) (Social Worker: Disclosure): CA 14 Nov 1995

A social worker may relate oral admissions made by parents to him to the police without first getting a court’s permission.
Butler-Sloss LJ said: ‘I would on balance and in the absence of argument give the more restrictive interpretation to r 4.23 and limit it to documents held by the court in the court file. I doubt that it extends to documents created for the purposes of the proceedings even if intended to be filed with the court, since they may not in fact become part of the court file. It is important that the rule should not be widely and loosely interpreted so as to bring within its ambit information at a stage when I am sure it was not intended to be covered and which would be contrary to wider considerations of the best interests of the child.’
Sir Roger Parker said: ‘The wording of rule 4.23 of the Family Proceedings Rules 1991 appears to me to be plain. Leave to disclose is only required in respect of documents and only in respect of documents held by the court . The rule thus follows established wardship practice as can be seen from the judgments of this Court in re D (Minors)(Wardship:Disclosure) [1994] 1 FLR 346. I can see neither need nor justification for extending the scope of the words so as to require leave for the disclosure of information imparted to a social worker and recorded in case notes or a report which for one reason or another has never reached the court. To do so would, in my view, not be construction but a complete rewriting of the rule and thus legislation, which is neither the function nor within the powers of the court. ‘

Judges:

Butler-Sloss LJ, Sir Roger Parker

Citations:

Times 14-Nov-1995, Gazette 06-Dec-1995, Independent 08-Dec-1995, [1996] 1 WLR 1407, [1996] 1 FLR 276

Statutes:

Family Proceedings Rules 1991 4.23

Jurisdiction:

England and Wales

Cited by:

Cited – Doctor A and Others v Ward and Another FD 9-Feb-2010
. .
Cited – Doctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
Lists of cited by and citing cases may be incomplete.

Police, Children

Updated: 09 December 2022; Ref: scu.81901

In Re Freudiana Holdings Ltd: CA 4 Dec 1995

A judge can discharge his own wasted costs order when issues came to required the re-litigation of the case.

Citations:

Times 04-Dec-1995

Jurisdiction:

England and Wales

Cited by:

Cited – Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 09 December 2022; Ref: scu.81892

In Re B (Minors) (Change of Surname): CA 1 Dec 1995

The mother sought to change the surname of the three children of the family from that of her divorced husband to that of the husband whom she had subsequently married. Her application for leave was refused by the circuit judge. She appealed.
Held: The appeal failed. A change of children’s surname was refused despite clear wishes of teenage children.

Judges:

Stuart-Smith LJ and Wilson J

Citations:

Times 01-Dec-1995, [1996] 1 FLR 791

Statutes:

Children Act 1989 8

Jurisdiction:

England and Wales

Cited by:

Cited – Dawson v Wearmouth HL 4-Feb-1999
The parents were unmarried. The mother had registered the child under her former partner’s surname. The father sought an order that his name be used instead. The mother’s apeal against an order to that effect had succeeded.
Held: The father’s . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 09 December 2022; Ref: scu.81726

Hunter v Butler: CA 28 Dec 1995

There could be no Fatal Accidents Acts damages for a loss of ‘moonlighting’ earnings dependency.

Citations:

Independent 02-Jan-1996, Times 28-Dec-1995, [1996] RTR 396

Statutes:

Fatal Accidents Act 1976

Jurisdiction:

England and Wales

Cited by:

Cited – Hewison v Meridian Shipping Services Pte Ltd, Coflexip Stena Offshore Ltd, Flex Installer Offshore Ltd QBD 30-Nov-2001
The applicant had been severely injured at work. He was an epileptic, and had not disclosed his condition to his employers, who because of the safety aspects of the work on oil rigs could not have employed him if he had disclosed the sickness. The . .
Lists of cited by and citing cases may be incomplete.

Personal Injury

Updated: 09 December 2022; Ref: scu.81547

Harrison and Another v Bloom Camillin: ChD 28 Oct 1999

When assessing the losses suffered by a plaintiff alleging that, through the professional negligence of his solicitors, he had lost the opportunity to pursue a similar action against his accountants, it was right to acknowledge, and allow for the fact that the vast majority of such actions came to be settled rather than going to full trial. The damages should reflect the uncertainties of litigation. The issue of law which would have arisen in the lost action should be treated as a question of fact in this dependent action.

Judges:

Neuberger J

Citations:

Gazette 25-Nov-1999, Times 12-Nov-1999, (2001) PNLR 195

Jurisdiction:

England and Wales

Citing:

Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 09 December 2022; Ref: scu.81257

Hallam-Eames and Others v Merrett Syndicates Ltd and Others: CA 25 Jan 1995

Members of Lloyd’s who faced re-insurance underwriting liabilities alleged negligence on the part of the active underwriter, their members’ agents and their syndicates’ managing agents. Limitation defences were raised.
Held: Mere knowledge of the damage of which complaint is later made, is not sufficient to start time running. Hoffmann LJ emphasised the statutory words ‘attributable . . to the act or omission which is alleged to constitute negligence’ and explained: ‘In other words the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence . . It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know ‘the essence of the act or omission to which the injury is attributable’ (Purchas LJ in Nash v Eli Lilly and Co [1993] 1WLR 782 at 799) or ‘the essential thrust of the case’ (Sir Thomas Bingham M.R. in Dobbie [1994] 1WLR 1238) or that ‘one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based’ (Hoffmann LJ in Broadley [1993] 4 Med LR 328, 332)’.

Judges:

Hoffmann LJ

Citations:

Independent 25-Jan-1995, Times 25-Jan-1995, [2001] Lloyd’s Rep PN 178, [1995] 7 Med LR 122

Statutes:

Limitation Act 1980 14A

Jurisdiction:

England and Wales

Cited by:

Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Smith v Leicestershire Health Authority CA 29-Jan-1998
The plaintiff appealed a finding that she had sufficient knowledge of her possible claim for medical negligence against the defendants, and that she was out of time. She had known of her condition, but said she had no sufficient reason to see that . .
Cited – Pierce v Doncaster Metropolitan Borough Council QBD 13-Dec-2007
The claimant sought damages, saying that the local authority had failed to protect him when he was a child against abuse by his parents.
Held: The claimant had been known to the authority since he was a young child, and they owed him a duty of . .
Lists of cited by and citing cases may be incomplete.

Limitation, Negligence

Updated: 09 December 2022; Ref: scu.81173

Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another: CA 1 Dec 1995

The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.
Morritt LJ discussed section 199: ‘Counsel for the wife submitted that it did not apply as the knowledge came to the knowledge of the solicitors for the lender as such when they were instructed to act on behalf of the lender on 19 June 1990. In the case of the wife it was submitted that the solicitors were not instructed by her as ‘agents to know.’
I do not accept either of these submissions. In my view the section has to be applied in accordance with its terms to the facts of this case. There is no doubt that the information as to the true purpose of the remortgage loan imparted by the husband came to the knowledge of the solicitors on 12 June 1990 as the solicitors for the husband and wife alone for they were not instructed to act for the lenders until 19 June at the earliest. That knowledge once acquired remained with the solicitors and cannot be treated as coming to them again when they were instructed on behalf of the lenders. As counsel for the wife accepted, their knowledge cannot be treated as divided or disposed of and reacquired in that way. The conclusion seems to me to be inescapable, namely that knowledge of the relevant matters facts or things did not come to the solicitors as the solicitors for the lenders. Accordingly it did not come to them ‘as such.’ It was not disputed that the lender is a purchaser within the definition contained in section 205(1)(xxi) of the Law of Property Act 1925. Consequently section 199(1)(ii)…b) precludes the solicitors’ knowledge of the relevant matters or facts being imputed to the lender.’

Judges:

Morritt LJ

Citations:

Times 01-Dec-1995, Gazette 11-Jan-1996, [1996] Ch 207

Statutes:

Law of Property Act 1925 199

Jurisdiction:

England and Wales

Citing:

Appeal from – Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another ChD 27-Jun-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .

Cited by:

Cited – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
Cited – Hardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .
Lists of cited by and citing cases may be incomplete.

Agency, Legal Professions, Banking

Updated: 09 December 2022; Ref: scu.81151

Griffiths v Williams: CA 21 Nov 1995

The Defendant landlord had demanded rent arrears and said that if the Claimant did not do what he wanted he would evict her from her flat. He forcibly raped her and then fought a criminal trial, alleging that sexual relations had been consensual and calling witnesses to blacken the Claimant’s character.
Held: Damages of pounds 50,000 for a rape were correct. Rape is ‘in a quite different category from personal injury cases in general’. The victim had to go through a trial and deal with an allegation of consent. The sum included an element of aggravated damages.

Judges:

Millett LJ, Rose LJ

Citations:

Times 24-Nov-1995

Jurisdiction:

England and Wales

Cited by:

Cited – Lawson v Glaves-Smith, Executor of the Estate of Dawes (Deceased) QBD 14-Nov-2006
The claimant sought damages saying that she had been falsely imprisoned, raped and drugged by the defendant who had since died.
Held: The court had only the evidence of the claimant, and must be careful in examining it. On that evidence the . .
Cited – AT and others v Dulghieru and Another QBD 19-Feb-2009
The claimants had been subject to unlawful human trafficking. Their abductors had been imprisoned, and they now sought damages. The court was asked now to assess the damages to be awarded for sexual enslavement. Each claimant suffered chronic post . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Torts – Other

Updated: 09 December 2022; Ref: scu.81048

Grahan v Szerelmey (UK) Ltd and Another: CA 16 Nov 1995

Personal injury defendant claiming prejudice for delay must allow for his own profit in keeping his cash. Delay in personal injury cases rarely causes defendant any financial prejudice.

Citations:

Gazette 29-Nov-1995, Times 16-Nov-1995

Jurisdiction:

England and Wales

Litigation Practice, Personal Injury

Updated: 09 December 2022; Ref: scu.80965

First Interstate Bank of California v Cohen Arnold and Co: CA 11 Dec 1995

If a guarantor’s negligent accountant had not misled the bank by misrepresenting his client’s wealth, the bank would have demanded repayment of its secured loan on 30th June 1990. In the event it did not realise the true position until 17th August. The judge held that if it had not been misled the bank would probably have achieved a satisfactory sale of the secured property in a falling market by the end of September in the sum of pounds 2.7 billion, and he awarded the whole of that sum by way of damages (subject to giving credit for the much lower sale price actually achieved). This court held that he had adopted the wrong approach. ‘. . there was a confusion between causation and damages and a failure to separate out those matters which had to be proved on the balance of probabilities, those which depended upon finding that chances were substantial, and finally the evaluation of the chance itself.’ Damages for loss of chance were recoverable, but must be substantial not speculative.

Judges:

Ward LJ

Citations:

Times 11-Dec-1995, [1996] PNLR 45

Jurisdiction:

England and Wales

Cited by:

Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 09 December 2022; Ref: scu.80556

First National Comercial Bank plc v Humberts: CA 27 Jan 1995

The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s appeal. A cause of action against surveyor arose only when the loss was sustained and crystalised, and it was not sustained on the survey.
Saville LJ said: ‘To my mind it would be wrong simply to take the debit side of the deal and to describe it as loss or damage flowing from the breach of duty without taking into account the credit side of the deal. The reason for this is that the inquiry is as to what loss or damage (if any) has been sustained through making the deal and when such loss or damage has been incurred. On this basis, on the evidence, I am quite unpersuaded that in July 1983 the plaintiffs were, to put it colloquially, out of pocket in respect of these expenses as a result of making the deal. They had no doubt incurred some expenditure but they had also received some benefit and there is nothing to show that the former exceeded the latter.’ and
‘At the hearing and in the judgment much reliance was placed on the cases where the claimant entered into a transaction which through a breach of duty owed to the claimant provided the claimant with less rights than should have been secured, or imposed liabilities or obligations on the claimant which should not have been imposed. Examples of these cases are: Forster v Outred and Co [1982] 1 WLR 86, Iron Trade Mutual Insurance Co Ltd v J K Buckenham Ltd [1990] 1 All ER 808, and Bell v Peter Browne and Co. [1990] 2 QB 495. In all those cases, however, the court was able to conclude that the transaction then and there caused the claimant loss, on the basis that if the injured party had been put in the position he would have occupied but for the breach of duty, the transaction in question would have provided greater rights, or imposed lesser liabilities or obligations than was the case; and that the difference between these two states of affairs could be quantified in money terms at the date of the transaction.’
‘At the hearing and in the judgment much reliance was placed on the cases where the claimant entered into a transaction which through a breach of duty owed to the claimant provided the claimant with less rights than should have been secured, or imposed liabilities or obligations on the claimant which should not have been imposed. Examples of these cases are: Forster v Outred and Co (a firm) [1982] 1 WLR 86, Iron Trade Mutual Insurance Co Ltd v J K Buckenham Ltd [1990] 1 All ER 808 and Bell v Peter Browne and Co (a firm) [1990] 2 QB 495. In all those cases, however, the court was able to conclude that the transaction then and there caused the claimant loss, on the basis that if the injured party had been put in the position he would have occupied but for the breach of duty, the transaction in question would have provided greater rights, or imposed lesser liabilities or obligations than was the case; and that the difference between these two states of affairs could be quantified in money terms at the date of the transaction. By contrast, in the present case, as in UBAF Ltd v European American Banking Corp [1984] QB 713 (and indeed Wardley Australia Ltd v State of Western Australia (1992) 109 ALR 247) it seems to me that whichever of the legally recognised kinds of loss is examined, it is impossible on the material available to conclude that the plaintiffs suffered such loss at any time more than six years from the date of their writ. For the reasons given, it has not been shown that they lost the amount of their advances at that time, or incurred expenses in respect of which they were out of pocket at that time; or at that time lost other transactions or the opportunity to make other transactions of a value greater than the deal they made.’ and ‘It is the law that a cause of action for the tort of negligence only arises when there has been a breach of duty resulting in actual (as opposed to potential or prospective) loss or damage of a kind recognised by the law.’

Judges:

Saville LJ

Citations:

Times 27-Jan-1995, Independent 14-Feb-1995, [1995] 2 All ER 673

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Iron Trade Mutual Insurance Co Ltd v J K Buckenham Ltd 1990
The negligence of the plaintiffs’ insurance brokers led to the insurance policies being voidable for non-disclosure.
Held: The plaintiffs suffered immediate damage on entering into the policies because they did not get the protection they . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .

Cited by:

Helpful – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Axa Insurance Ltd v Akther and Darby Solicitors and Others CA 12-Nov-2009
The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the . .
Lists of cited by and citing cases may be incomplete.

Limitation, Negligence

Updated: 09 December 2022; Ref: scu.80562

Drake v Whipp: CA 30 Nov 1995

The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff appealed against a finding that she had only a 14.9% interest on a resulting trust, in the house she and the defendant had occupied together. The property had been purchased for andpound;61,000 of which she had contributed andpound;24,000, with later additional contributions to conversion works. She complained that working on a resulting trust, the costs of acquisition were given undue emphasis.
Held: A beneficial interest in a family home could be presumed from the intention of the parties and their acting in detriment. There was a constructive trust. There was undisputed evidence that she was to have an interest in the property, and she had acted to further that intention and to her detriment. The appeal was allowed, and her interest set at one third. ‘it is not easy to reconcile every judicial utterance in this well-travelled area of the law. A potent source of confusion, to my mind, has been suggestions that it matters not whether the terminology used is that of the constructive trust, to which the intention, actual or imputed, of the parties is crucial, or that of the resulting trust which operates on a presumed intention of the contributing party in the absence of rebutting evidence of actual intention.’

Judges:

Peter Gibson LJ, Lord Justice Hirst and Mr Justice Forbes

Citations:

Times 19-Dec-1995, [1996] 2 FCR 296, [1995] EWCA Civ 25, (1996) 28 HLR 531, [1996] CLY 5780

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Dyer v Dyer 27-Nov-1988
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold . .

Cited by:

Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Trusts, Housing, Family

Updated: 09 December 2022; Ref: scu.80130

Doorbar v Alltime Securities Ltd: CA 18 Dec 1995

Landlord bound by voluntary arrangement on future rent despite disagreement. A meeting chairman has power to impose ‘agreed’ value on claim to allow vote to creditor.

Citations:

Ind Summary 18-Dec-1995, Gazette 17-Jan-1996, Times 07-Dec-1995

Statutes:

Insolvency Rules 1986 5 17(3)

Jurisdiction:

England and Wales

Insolvency, Landlord and Tenant

Updated: 09 December 2022; Ref: scu.80097

Crimpfil Ltd v Barclays Bank Plc: CA 16 Feb 1995

The bank appealed against an interim award of a substantial sum for damages for having arbitrarily withdrawn the plaintiff’s loan facilities.
Held: The judge had heard the evidence and considered it, and was entitled to take his own view, even though substantial questions might arise at trial. The rules gave him a wide discretion which had exercised carefully and fairly. Interim damages will usually limited to what was certain to be recovered, but this was not specified to be so in the court rules.

Judges:

Nourse LJ, Waite LJ, Sir Tasker Watkins

Citations:

Times 24-Feb-1995, Ind Summary 27-Mar-1995, [1995] CLC 385

Statutes:

Rules of the Supreme Court O.29

Jurisdiction:

England and Wales

Damages

Updated: 09 December 2022; Ref: scu.79671

Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd: CA 29 Dec 1995

A ‘keep open’ clause in a commercial lease can be enforced by an order specific performance but only in rare cases. It would normally be unreasonable.
Millett LJ said: ‘The competing arguments in the present case, and the difference in the views of the members of this court, reflect a controversy which has persisted since the dispute between Sir Edward Coke and Lord Ellesmere LC Sir Edward Coke resented the existence of an equitable jurisdiction which deprived the defendant of what he regarded as a fundamental freedom to elect whether to carry out his promise or to pay damages for the breach Modern economic theory supports Sir Edward Coke; an award of damages reflects normal commercial expectations and ensures a more efficient allocation of scarce economic resources The defendant will break his contract only if it pays him to do so after taking the payment of damages into account;the plaintiff will be fully compensated in damages;and both parties will be free to allocate their resources elsewhere Against this there is the repugnance felt by those who share the view of Fuller CJ in Union Pacific Railway Co v Chicago, Rock Island and Pacific Railway Co (1896) 163 US 564, 600 that it is an intolerable travesty of justice that a party should be allowed to break his contract at pleasure by electing to pay damages for the breach English law has adopted a pragmatic approach in resolving this dispute The leading principle is usually said to be that equitable relief is not available where damages are an adequate remedy In my view, it would be more accurate to say that equitable relief will be granted where it is appropriate and not otherwise;and that where damages are an adequate remedy it is inappropriate to grant equitable relief’

Judges:

Millett LJ

Citations:

Times 29-Dec-1995, Independent 25-Jan-1996, [1996] Ch 286

Jurisdiction:

England and Wales

Cited by:

Appeal from – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 09 December 2022; Ref: scu.79485

Chief Adjudication Officer and Another v Palfrey; Same v Dowell, Same v McDonnell: CA 17 Feb 1995

Property was acquired by joint owners to provide accommodation for both joint owners. That purpose would be defeated if one of those acquiring the property were to insist on a sale while that purpose was still subsisting. The value of a joint interest in a house when calculating benefits entitlement was the market value of that half share, not one half of the value of the whole. There was ‘nothing obscure or abstruse in the conclusion that the amount of capital which the applicant’s joint possession of that dwelling house represents may fall, for the time being, to be quantified in a nominal amount.’ In this case the value was nil.

Judges:

Hobhouse LJ

Citations:

Ind Summary 10-Apr-1995, Gazette 15-Mar-1995, Times 17-Feb-1995

Statutes:

Trusts of Land and Appointment of Trustees Act 1996

Jurisdiction:

England and Wales

Cited by:

Cited – Wilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Benefits

Updated: 09 December 2022; Ref: scu.79031

C (A Minor) v Hackney London Borough Council: CA 10 Nov 1995

The mother had claimed in damages for the injuries to her health from the landlord authority’s failure to repair. Her child then brought a subsequent action in respect of his own injuries. The authority claimed the action should be stopped as res judicata.
Held: The child’s injuries from bad housing were a separate claim from those of her mother, and the action should proceed. The fact of the child’s disability meant that the erstwhile practice risked subverting CCR Ord 10 r10
Simon Brown LJ said: ‘I therefore reject entirely the submission that Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581 justifies extending the Talbot v. Berkshire County Council [1994] Q.B. 290 principle – that an unlitigated monetary claim is barred if it could have been advanced and established in earlier proceedings (itself to my mind an extended application of the res judicata doctrine) – to those not themselves party to the earlier proceedings.
It follows from all this that in my judgment the doctrine of res judicata even in its widest sense has simply no application to the circumstances of the present case and that the judge erred in ruling to the contrary. One does not, therefore, reach the point of asking here whether special circumstances exist to exclude it; C’s erstwhile solicitors’ suggested negligence is, frankly, an irrelevance. Nor, in my judgment, does this case come within measurable distance of any other form of abuse of process based on public policy considerations analogous to those underlying the res judicata doctrine: see, for instance, the Court of Appeal’s decision in Ashmore v. British Coal Corporation [1990] 2 Q.B. 338.
All that said, this judgment should not be taken as any encouragement to lawyers or their clients to follow the course in fact adopted here. As the judge rightly recognised, in circumstances such as these, it is plainly in the public interest to have a single action in which the claims of all the affected members of the household are included rather than a multiplicity of actions . . .’

Judges:

Simon Brown LJ

Citations:

Times 10-Nov-1995, [1996] 1 WLR 789

Jurisdiction:

England and Wales

Citing:

Cited – Yat Tung Investment Co Ltd v Dao Heng Bank Ltd PC 1975
Restraint of Second Action as Abuse
Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . .
Cited – Talbot v Berkshire County Council CA 23-Mar-1993
In a motor accident, both driver and passenger were injured. The passenger sued the driver. The driver’s insurers, without notice to the driver, made a third party claim against the Berkshire County Council, claiming contribution as between joint . .
Cited – Ashmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .

Cited by:

Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 09 December 2022; Ref: scu.78796

Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others: CA 10 Apr 1995

The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee whose loan is used to repay another charged debt is subrogated to that debt, and can rely on that charge. Millett LJ said: ‘If the plaintiff succeeds in tracing his property, whether in its original or in some changed form, into the hands of the defendant, and overcomes any defences which are put forward on the defendant’s behalf, he is entitled to a remedy. The remedy will be fashioned to the circumstances. The plaintiff will generally be entitled to a personal remedy; if he seeks a proprietary remedy he must usually prove that the property to which he lays claim is still in the ownership of the defendant. If he succeeds in doing this the court will treat the defendant as holding the property on a constructive trust for the plaintiff and will order the defendant to transfer it in specie to the plaintiff. But this is only one of the proprietary remedies which are available to a court of equity. If the plaintiff’s money has been applied by the defendant, for example, not in the acquisition of a landed property but in its improvement, then the court may treat the land as charged with the payment to the plaintiff of a sum representing the sum by which the value of the defendant’s land has been enhanced by the use of the plaintiff’s money. And if the plaintiff’s money has been used to discharge a mortgage on the defendant’s land, then the court may achieve a similar result by treating the land as subject to a charge by way of subrogation in favour of the plaintiff.’

Judges:

Millett LJ, Stuart-Smit LJ, Millet LJ

Citations:

Gazette 01-Jun-1995, Independent 23-May-1995, Times 25-Apr-1995, [1996] 1 WLR 328, [1995] 4 All ER 769, [1995] EWCA Civ 15

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Whitworth v Gaugain 1844
. .
Cited – Ghana Commercial Bank v Chandiram PC 1960
The bank made an advance to the owner of property in Accra which was used to pay off his indebtedness to Barclays (DC and O) Ltd, secured by an equitable mortgage. The owner executed a legal mortgage in favour of the Ghana Bank, but this was . .
Cited – Chung Khiaw Bank v United Overseas Bank PC 1970
(Singapore) A judgment creditor who obtains a charging order against his debtor’s property can take only such interest as the debtor has in the property. Charging orders take effect subject to prior mortgages, whether legal or equitable. . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Ezekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .

Cited by:

Cited – Halifax Plc v Omar CA 20-Feb-2002
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Cheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 09 December 2022; Ref: scu.78495

Barrow v Bankside Members Agency Limited: CA 10 Nov 1995

Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh proceedings against his members’ agent on a different ground. It was clear that this claim, even if made earlier, would not have been tried at the same time as the earlier action, since the scheduling of cases was the subject of detailed management by the Commercial Court.
Held: Lloyds litigation might allow exception to the Henderson rule to ensure that all claims were heard.
Bingham CJ said: ‘The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.’

Judges:

Lord Bingham CJ

Citations:

Times 10-Nov-1995, [1996] 1 WLR 257

Jurisdiction:

England and Wales

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

Cited by:

Cited – J A Pye (Oxford) Limited v South Gloucestershire District Council CA 26-Oct-2000
The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
Held: The appeal to the court . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.78257

Barrett v Ministry of Defence: CA 3 Jan 1995

The deceased was an off-duty naval airman. The claim was based upon the alleged negligent failure of the defendant to enforce disciplinary regulations against drunkenness so as to protect the deceased against his own known proclivity for alcohol abuse.
Held: The Ministry of Defence has no duty to prevent a forces member from the abuse of drink. It was not liable, even though the death from drunkenness was contributed to by an officer’s encouragement. The Ministry was liable on the basis that, following his collapse, service personnel voluntarily assumed a duty of care by acting as the deceased’s quasi-rescuer and were negligent in that capacity. In relation to the original drunkenness of the deceased, the court emphasised that foresight of harm alone was not sufficient to create a duty to guard him against his own folly.
Beldam LJ said: ‘The plaintiff argued for the extension of a duty to take care for the safety of the deceased from analogous categories of relationship in which an obligation to use reasonable care already existed. For example, employer and employee, pupil and schoolmaster, and occupier and visitor. It was said that the defendant’s control over the environment in which the deceased was serving and the provision of duty-free liquor coupled with a failure to enforce disciplinary rules and orders were sufficient factors to render it fair just and reasonable to extend the duty to take reasonable care found in the analogous circumstances. The characteristic which distinguishes those relationships is reliance expressed or implied in the relationship which the party to whom the duty is owed is entitled to place on the other party to make provision for his safety. I can see no reason why it should not be fair just and reasonable for the law to leave the responsible adult to assume responsibility of his own actions in consuming alcoholic drink … . To dilute self-responsibility and to blame one adult for another’s lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far.’
As to the context of the armed forces and its regulations: ‘In my view the judge was wrong to equate Queen’s Regulations and Standing Orders with guidance give in the Highway Code or in pamphlets relating to safety in factories. The purpose of Queen’s Regulations and Standing Orders is to preserve good order and discipline in the Service and to ensure that personnel remain fit for duty and, while on duty, obey commands and, off duty, do not misbehave, bringing the service into disrepute. All regulations which encourage self-discipline, if obeyed, will incidentally encourage service personnel to take greater pride in their own behaviour but in no sense are the Regulations and Orders intended to lay down standards or to give advice in the exercise of reasonable care for the safety of men when off duty drinking in bars. . .’

Judges:

Beldam LJ

Citations:

Times 13-Jan-1995, Independent 03-Jan-1995, [1995] 1 WLR 1217, [1994] EWCA Civ 7, [1995] 3 All ER 87

Links:

Bailii

Statutes:

Fatal Accidents Act 1976, Law Reform (Miscellaneous Provisions) Act 1934

Jurisdiction:

England and Wales

Citing:

Appeal from – Barrett v Ministry of Defence QBD 3-Jun-1993
The MOD was liable in negligence for an airman’s death due to its breach of duty if regulations were not kept to. . .

Cited by:

Cited – Jebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .
Cited – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
Applied – Michael Alexander Watson v British Boxing Board of Control Ltd, World Boxing Organisation Incorporated CA 19-Dec-2000
The claimant was seriously injured in a professional boxing match governed by rules established by the defendant’s rules. Ringside medical facilities were available, but did not provide immediate resuscitation. By the time he received resuscitation . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Lists of cited by and citing cases may be incomplete.

Negligence, Armed Forces

Updated: 09 December 2022; Ref: scu.78255

Ferreira, Regina v: CACD 18 Mar 2021

Application on behalf of the Attorney General for leave to make a Reference to this Court, under section 36 of the Criminal Justice Act 1988 (‘the 1988 Act’), on the ground that the sentence was unduly lenient.

Citations:

[2021] EWCA Crim 537

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Sentencing

Updated: 09 December 2022; Ref: scu.662106

Re M (Care Proceedings – Neglect – Placement With Father): FC 4 May 2021

M has extra needs compared to other children of his age.
A parent looking after him needs to help him manage:
– His education;
– His worries and anxiety;
– Making sure he goes to bed and gets up on time;
– Keeping his weight down and helping him live a healthy life;
– Helping him make friends;
– Helping him find interests and activities to do outside the home.
M’s mum loves him very much. She has tried her best to look after him.
When M was living with her she was not able to give him the care he needed to keep him healthy, happy and safe.
Even with lots of help from the local authority, M’s mum was not able to make changes so that things got better for M.
The judge has decided that M should stay living with his dad and [his partner C].
Since he has been living with his dad there have been some positive changes for M. He has been attending education 80% of the time. He has a better sleep routine. He is more relaxed and less anxious.
His dad and C still need a lot of help to meet M’s needs.
Oxfordshire County Council will work with [X] children’s services to help them care for M and give him what he needs.
M will see his mum regularly. At the start he will see her once a month. If things go well he can see her more often and can stay overnight.

Citations:

[2021] EWFC B23

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 09 December 2022; Ref: scu.662336

McWilliams, Regina v: CACD 21 May 2021

The Attorney General sought leave to refer a sentence to this Court arising from the interrelationship between the court’s power under section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000 to fix the minimum term to be served under a discretionary life sentence, and the custodial period after which prisoners serving determinate sentences are eligible for release as set out in the Criminal Justice Act 2003.

Judges:

Dame Victoria Sharp P

Citations:

[2021] EWCA Crim 745

Links:

Bailii

Statutes:

Criminal Justice Act 2003, Powers of Criminal Courts (Sentencing) Act 2000 82A(3)

Jurisdiction:

England and Wales

Criminal Sentencing

Updated: 09 December 2022; Ref: scu.662802

Living Waters Christian Centres Ltd v Fetherstonhaugh: CA 27 Apr 1999

The plaintiff tenant appealed from the dismissal of its application under sections 22(1) and 23(2) of the Arbitration Act 1950 to set aside or remit to the arbitrator, on the grounds of misconduct, an award in a rent review arbitration, relating to a lease of premises at Abergele in North Wales

Judges:

Peter Gibson, Potter LJJ, Blofield J

Citations:

[1999] EWCA Civ 1269

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant, Arbitration

Updated: 09 December 2022; Ref: scu.662787

Barclays Bank Plc v Fairclough Building Ltd (No 2): CA 15 Feb 1995

Contractors taking on building work should be assumed to have taken account of the possible presence of asbestos when quoting for the work.

Citations:

Times 15-Feb-1995, Ind Summary 20-Feb-1995

Jurisdiction:

England and Wales

Citing:

See also – Barclays Bank Plc v Fairclough Building Ltd CA 11-May-1994
Contributory negligence is no defence to a claim which was made out strictly in contract only. . .

Cited by:

See also – Barclays Bank Plc v Fairclough Building Ltd CA 11-May-1994
Contributory negligence is no defence to a claim which was made out strictly in contract only. . .
Lists of cited by and citing cases may be incomplete.

Contract, Construction

Updated: 09 December 2022; Ref: scu.78203

Bank of Baroda v Rayarel and Others: CA 19 Jan 1995

A bank may assume that a solicitor advising a customer’s wife had acted properly. The solicitors acted for both the husband and the wife before they also gave their instructions to the solicitors.

Citations:

Times 19-Jan-1995, [1995] 2 FLR 376

Jurisdiction:

England and Wales

Cited by:

Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Banking

Updated: 09 December 2022; Ref: scu.78132

Attorney General v Hayward: CA 10 Nov 1995

The standard of proof in vexatious litigant proceedings is civil not criminal. Even so, because the fundamental rights of the subject are affected by the making of a civil proceedings order, there should be evidence placed before the court that the appropriate law officer has personally considered the papers and has personally authorised the making of the application.

Judges:

Pill J

Citations:

Times 20-Nov-1995

Statutes:

Supreme Court Act 1981 42

Jurisdiction:

England and Wales

Cited by:

Cited – H M Attorney General v Foley and Foley CA 21-Aug-1997
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.77951

Attorney General for Hong Kong v Reid and Others: PC 24 Nov 1993

Principalhas proprietary interest in Trust assets

Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes received from the properties purchased.
Held: The employer had a proprietary interest both in the bribe and in the asset substituted for it. Thus the property belonged in equity to the employer. The first stage in the analysis was the decision that the bribe itself was trust property. The second stage in the analysis was simply the application of the process of tracing the value of the bribe into the asset that had been substituted for it. A fiduciary office holder who accepted a bribe holds both the original sum, and any increase in its value, on a constructive trust for the person to whom he owed that fiduciary duty. Bribery is an evil practice which threatens the foundations of any civilised society. It corrupts not only the recipient but the giver of the bribe. ‘property acquired by a trustee innocently but in breach of trust and the property from time to time representing the same belong in equity to the cestui que trust and not to the trustee personally’:

Judges:

Lord Templeman Lrd Goff. Lord Lowry, Lord Lloyd, Sir Thomas Eichelbaum

Citations:

Gazette 26-Jan-1994, Independent 24-Nov-1993, Times 12-Nov-1993, [1994] 1 AC 324, [1993] UKPC 2, [1994] 1 All ER 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Wrongly decided – Lister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .

Cited by:

Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts, Commonwealth

Updated: 09 December 2022; Ref: scu.77944

Iqra Community Primary School v Mansur (Whistleblowing : Protected Disclosure): EAT 5 Nov 2020

An Employment Tribunal erred by permitting the Claimant to amend her claim to add new allegations of whistleblowing detriment and by listing a final hearing without notice to the Respondent, in a case where the Respondent had made no response to the claim. The amendment decision was made without sufficient consideration of the guidance in Selkent Bus Co Ltd v Moore [1996] ICR 836. Rule 21 (3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 required the Respondent to be given notice of the further hearing.

Citations:

[2020] UKEAT 0116 – 20 – 0511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661662

Foundation Partners (Gp) (A Firm) v Revenue and Customs (Income Tax – Partnership Established for Purposes of Constructing A Building In Montenegro): FTTTx 26 Jan 2021

INCOME TAX – partnership established for purposes of constructing a building in Montenegro – claims for sideways loss relief by partners – whether activities of Appellants amounted to a trade – if a trade, whether various payments were trading expenses – basis on which Appellants should calculate any trading loss – application of paragraph 51 of FRS 5 to Appellants’ accounts – ss 25, 26, 33, 34 ITTOIA 2005

Citations:

[2021] UKFTT 18 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Income Tax

Updated: 09 December 2022; Ref: scu.661736

Klukowska v Bridge of Weir Leather Company Ltd (Practice and Procedure): EAT 10 Feb 2021

Practice and Procedure
In this case the Tribunal dismissed a claim because of non-compliance with an ‘unless’ order. The Claimant appealed arguing that she had complied with the order. Held that the Tribunal’s judgement failed to explain why the specification supplied by the Claimant was inadequate. In any event the level of detail could not be said to be materially non-compliant. While more detail could have been given, the specification provided was sufficient to enable the Respondent to prepare their defence. It was important that a realistic approach should be taken to the provision of names, dates and witnesses by a party who was unlikely to have ready access to the relevant information. Documents supplied by parties in compliance with ‘unless’ orders should not be treated as a specie of written pleading or subjected to minute scrutiny; and appeal allowed.

Citations:

[2021] UKEAT 0038 – 18 – 1002

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661695

Dafiaghor-Olomu v Community Integrated Care (Practice and Procedure): EAT 15 Jan 2021

In this case the Claimant lodged a Notice of Appeal that covered both an original judgement and a reconsideration judgement. The Notice was refused at sift insofar as it incorporated grounds of appeal arising from the reconsideration judgement on the basis that it was incompetent to appeal two orders arising from separate hearings in a single Notice of Appeal. On learning of the sift judge’s decision the Appellant lodged a new Notice of Appeal covering the grounds of appeal she wished to state against the reconsideration judgement. It was rejected by the Registrar as out of time. The Appellant submitted that the Registrar should not have rejected the second Notice of Appeal. Held that provided the Notice of Appeal made it clear that the Appellant sought to appeal the original judgement and the reconsideration judgement and both appeals were lodged within the time limits set by the Rules, the Notice of Appeal was competent to bring under appeal both the original judgement and the reconsideration judgement. Held further that had it been necessary to consider the matter, an extension of time would have been granted to permit the second Notice of Appeal to be received.

Citations:

[2021] UKEAT 00036 – 18 – 1501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661682

Tuner v Revenue and Customs (Married Womens Non-Payment Election and Married Womens Reduced Rate Election In Respect of National Insurance): FTTTx 8 Mar 2021

Married Women’s Non-Payment Election and Married Women’s Reduced Rate Election in respect of National Insurance, Presumption of Regularity, whether rebutted, appeal allowed in part

Citations:

[2021] UKFTT 60 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Taxes – Other

Updated: 09 December 2022; Ref: scu.661793

Crew Employment Services Camelot v Gould (Practice and Procedure): EAT 15 Jan 2021

The Claimant in the Employment Tribunal, a police officer serving with the Respondent Force, made a number of subject access requests to the Respondent’s Data Access Unit (DAU). One of these, made in 2017, (SAR1) was for all emails sent within the Force ‘with a connection to me’ between 2002 and 2017. The Respondent was aware that he considered that he had been the victim of unlawful discrimination, and intended to (and did) bring Employment Tribunal claims.
SAR 1 was referred by the DAU to the Anti-Corruption Unit (ACU), which was the body which kept an archive of all emails sent within the Force. Following an initial response from the ACU to the DAU, the Claimant was informed that his request was too wide, and that he needed to identify the names of senders and recipients that he wanted searched. The DAU was told by the ACU that its software at the time did not enable an automated search to be conducted for any email mentioning the Claimant, regardless of who sent or received it. In January 2018 the Claimant was given access to the emails that had been provided to the DAU by the ACU in November 2017. The Tribunal accepted that, to comply with GDPR from May 2018, the ACU upgraded its software, which improved its automated email search capabilities. Thereafter, following further correspondence about his request, a further batch of emails was provided to the Claimant in October 2018.
The Tribunal, by a majority, found that the Claimant had been victimised, in three respects, by the conduct of the Data Access Manager, referred to as Mr D, in connection with SAR 1. The premise of all these findings was the majority’s conclusion that the ACU in fact had the capability to find the further batch of emails provided in October 2018, when it first responded to SAR1 in November 2017; that the limitations of the ACU’s software prior to the GDPR upgrade did not truly explain why that second batch of emails had not been disclosed with the first batch; and that Mr D knew this to be the case. This conclusion was relied upon by the majority to support the conclusion that Mr D’s impugned conduct was reasonably viewed by the Claimant as detrimental treatment; and that the burden shifted to the Respondent to show that such conduct was not because of the Claimant’s protected acts; and that, as Mr D had not been called as a witness, the Respondent had not discharged that burden, so that findings of victimisation followed.
On the Respondent’s appeal, it was held:
(1) The majority did not have a proper basis, on the evidence before the Tribunal, and facts found, to conclude that the explanation given, for why the ACU was not able to retrieve more emails than were produced, prior to the software upgrade, was not true. The majority rested their conclusion on their understanding of what the ACU existed to do, but the facts found about that, whether generally or in relation to the email archive, did not properly support such an inference. The majority were also wrong to draw an adverse inference from the failure of the Respondent to call a witness from the ACU (in addition to one from the DAU) when the pleaded victimisation claims did not identify that the conduct of the ACU in relation to SAR1 was specifically being criticised. The finding that the explanation given by the ACU was not true was therefore perverse. As it was conceded by the Claimant that the findings of detrimental treatment all rested on that finding (and the inference that Mr D knew that the ACU could have retrieved the October emails at the outset), those findings of detrimental treatment could not stand.
(2) In any event, the matters referred to by the majority as supporting a shifting of the burden of proof could not, separately or cumulatively, properly support the shifting of the burden. In addition, in considering whether the burden shifted in relation to Mr D’s impugned conduct, the majority should have considered the picture painted by all of the Tribunal’s relevant findings regarding his conduct, and his interactions with the Claimant, in relation to SAR1. Consideration of the whole picture reinforced the conclusion that there was no proper basis for the majority’s finding that the burden of proof shifted to the Respondent.
The appeal was accordingly allowed.

Citations:

[2021] UKEAT 0330 – 19 – 1501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661680