Archive for May 2010
Less than ambulatory intentions
Kernott v Jones [2010] EWCA Civ 578
This was the Court of Appeal hearing, on a second appeal, of a case on equitable interests in a property. We reported the first appeal to the High Court and were uneasy about the outcome of that appeal, which seemed to turn more on an idea of fairness than [...]
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OB (by his mother and litigation friend) (FC) (Respondent) v Aventis Pasteur SA (Appellant), [2010] UKSC 23
The Respondent sought an order that APSA be substituted as a defendant in place of APMSD in the proceedings against…
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Recoverability of Money Paid in Relation to Unfair Terms
There is a certain amount of interest recently in the ability to recover monies paid in respect of terms in agreements, which have later been found to be unfair. This has been a live issue in respect of the aftermath of the case of Office of Fair Trad…
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An Interesting (but wholly normal) Trespass and Rights of Way Case in Northern Ireland*
The High Court of Northern Ireland has been considering the creation of an implied right of way in a wholly normal and innocent set of factual circumstances.
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The Scottish Ministers v. Claire Rennison or Smith [2010] CSIH 44
Reclaiming Motion:- In the action the petitioners sought a recovery order under the Proceeds of Crime Act 2002. The first…
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Crieff Highland Gathering Ltd v. Perth and Kinross Council [2010] CSOH 67
Procedure Roll:- In this action the pursuer sought declarator that a lease between the parties, relating to subjects in Crieff,…
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Her Majesty’s Advocate v. Discovery Homes (Scotland) Limited and Richard Pratt [2010] HCJAC 47
Crown Appeal Against Sentence:- On 29 May 2008 the first respondent, a building contractor, was constructing houses in Dundee when one of its employees, Andrezej Freitag, fell from the third to the second storey of a block under construction and sustained injuries from which he died. The first respondent was indicted to Dundee Sheriff Court and pled to contravention of sections 2(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974 namely that they failed to ensure the health, safety and welfare at work of one of their employees by failing to provide inter alia a guard-rail, barrier, or similar collective means of protection. The second respondent, a director of the first respondent was employed by the first respondent as site manager and was the sole full-time safety representative of the first respondent at the locus, pled guilty to a charge under section 37(1) of the 1974 Act. The sheriff fined the first respondent £5,000, discounted from £7,500, and the second respondent £4,000, discounted from £6,000. The pleas had been tendered at the earliest opportunity and the sheriff discounted the fines by a third to reflect those pleas. Here the Crown appealed against both sentences on the grounds that the starting off point selected by the sheriff was unduly lenient. In his report the sheriff stated that the fine imposed against the first respondent was limited as a substantial fine would almost inevitably result in the first respondents falling into administration or liquidation and the fine imposed was one which reflected the funds available to the first respondents. On behalf of the Crown it was submitted, referring to paragraph 25 of the Definitive Guideline issued by the (English) Sentencing Guidelines Council that:- “… where the [health and safety] offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more” albeit the offence was committed prior to the operative date of the Definitive Guideline. The court considered the appeal having regard to a number of reports by accountants instructed by the Crown and the respondents, which were not available to the sentencing sheriff to consider whether either of the sentences imposed could be held to be unduly lenient.
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How binding is a s.125 notice?
Nessa v London Borough of Tower Hamlets [2010] EWCA Civ 559
This is an interesting appeal on the issue of the amendment or replacement of a S.125 Housing Act 1985 notice offering the right to buy at a specified price. The actual case itself is not particularly interesting as it turns out, but there are some [...]
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Lettings EPCs and HIPs
Further to our post yesterday on the suspension of HIPs and the amendments to the EPC regulations, the amendment has now been published on the OPSI website.
From an examination of the amendment regulations it can be seen that the main change is an inse…
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Al Rawi & Ors v Security Service & Ors, 04/05/2010, [2010] EWCA Civ 482
The underlying private law action brought by the six claimants in this case is for damages for improper detention and mistreatment as part of the “war on terror”, phrased in conventional torts such as false imprisonment, trespass to the person and misfeasance in public office, and public law breaches such as breach of the Human Rights Act 1998 on the basis that the treatment was torture or inhuman or degrading treatment. They had been held at Guantanamo Bay. Various government departments were said to be complicit in the harm suffered: they filed an open defence, but also sought to rely on closed material and to have proceedings that would consider this closed material by way of special advocates (ie keeping the defence away from the Claimants and their lawyers). This was presented as little more than an obvious extension of the principles of public interest immunity and the hearing of some evidence in private through the well-established process of the special advocate; indeed, they suggested that the process of considering and making the relevant PII applications would take some 3 years or more, and so the alternative process suggested would secure expedition. Silber J accepted these arguments: the Claimants appealed, joined by human rights organisations and some media companies.
The Court of Appeal overturned the judgment. Lord Neuberger MR, speaking for the Court, noted that the question was whether in the absence of a specific statutory regime it was permissible to order a private law trial for damages to be heard in private: the unambiguous conclusion was that there was no such power in the absence of a statute to that effect (though the possibility of the parties agreeing to the process was left open). In truth, determined the Court of Appeal, the approach adopted by Silber J was not a matter of developing the common law in a flexible way: rather, the judge had forgotten a fundamental principle of the common law, namely that of open justice and the adversarial process, under which the lawyers of the parties see all the relevant evidence and have the ability to use or test it. In short, the rule was that fair trial involved irreducible minimum requirements that could not be taken away in the absence of specific statutory authority: that could not be provided by the general lan guage as to effective case management in the CPR.
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