West Law Report

Considering further submissions in renewed asylum claim

Posted in House of Lords (case), Times Law Report by mrkooenglish on February 19, 2009

From Times OnlineFebruary 8, 2009

Considering further submissions in renewed asylum claim

House of Lords
Published February 9, 2009
ZT (Kosovo) v Secretary of State for the Home Department
Before Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches February 4, 2009

When a claim for asylum had been rejected as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002, and the claimant made further submissions, the Secretary of State for the Home Department had to consider whether those further submissions created a realistic prospect of success under rule 353 of the Immigration Rules (HC 395) and not whether they were clearly unfounded under section 94 of the 2002 Act.

However, since the test under section 94(2) was more generous than the test under rule 353, whichever test was adopted, the claim would have failed.

The House of Lords so held, Lord Hope dissenting in part, when allowing the appeal of the Home Secretary from the Court of Appeal ([2008] EWCA Civ 14) (Lord Justice Buxton and Lord Justice Sedley; Lord Justice Pumfrey agreed with his fellow judges but died before judgment was delivered) who granted an application for judicial review by the applicant, ZT, and quashed the decision of the secretary of state to maintain refusal of the applicant’s claim for asylum and to certify the claim under section 94(2) of the 2002 Act as clearly unfounded.

Rule 353 provides that when an asylum claim had been refused and “any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

Mr Steven Kovats for the secretary of state;
Mr Satvinder Juss for ZT.

LORD PHILLIPS said that in 2003, ZT, a Kosovan Ashkali, a sub-group of the Roma, arrived clandestinely in the UK from Kosovo, then part of Serbia, and claimed asylum and protection on human rights grounds.

He claimed that the Roma constituted a minority that was widely persecuted in Eastern Europe, including Serbia; that 17 years earlier he had married a lady who was not of his ethnicity; that he had concealed his ethnicity from her family until 2002, when they discovered he was Ashkali; that his wife’s brothers then beat him up and took his wife and children away from him; and that they had however managed to follow him to England. He said he feared that if he returned to Kosovo his wife’s brothers would find him and would kill him.

The secretary of state rejected his application on the grounds that the authorities in Kosovo would afford ZT sufficient protection, that if he was fearful of attack from his wife’s family he could reasonably be expected to live in another part of Kosovo and that there was nothing about ZT’s appearance or speech which would lead anyone who was not aware of his ethnicity to suspect that he was anything other than Albanian.

The secretary of state certified pursuant to section 94(2) of the 2002 Act that ZT’s claims were clearly unfounded. The effect of the certification was that ZT could only exercise an out-of-country appeal once he had left the jurisdiction.

ZT then made further submissions to the secretary of state on asylum and human rights grounds, accompanied by additional material. The secretary of state rejected those submissions and maintained the certification of the claims as clearly unfounded.

ZT sought judicial review to challenge the secretary of state’s certification. Mr Justice Collins refused permission to seek judicial review ([2006] EWHC (Admin)) but Sir Henry Brooke granted permission to appeal against that refusal. The secretary of state applied to set aside the grant of leave to appeal. The Court of Appeal refused to set aside the order of Sir Henry Brooke and decided itself to hear the application for judicial review.

The Court of Appeal had held that the secretary of state should have approached ZT’s further submissions on the basis that rule 353 applied to them, and if she had it might have made a difference to her decision.

His Lordship concluded that the Court of Appeal was correct to proceed upon the basis that rule 353 applied to the further submissions made by ZT to the secretary of state. The question then was whether it might have made a difference to her decision if she had proceeded in accordance with rule 353.

The secretary of state carried out the section 94 reconsideration and concluded that ZT’s claim remained clearly unfounded. The rule 353 procedure would first have required her to decide whether she accepted or rejected the further submissions.

That was precisely what she would have done under the section 94 reconsideration. Thus the first stage of the rule 353 procedure would have produced the same result. ZT’s further submissions would have been rejected.

The secretary of state would then have been required to determine whether the further submissions would amount to a fresh claim. The rule 353 procedure thus would have required her to consider ZT’s claim as a whole, just as she would have done under the section 94 reconsideration.

The section 94 reconsideration led the secretary of state to conclude that ZT’s claim remained clearly unfounded.

Might she have concluded that it had a realistic prospect of success had she applied the rule 353 procedure?

Only if the test of whether or not a claim had a realistic prospect of success was more generous than the test of whether or not a claim was clearly unfounded. Plainly it was not. A claim that was clearly unfounded could not possibly have a reasonable prospect of success.

Arguably a claim that had no realistic prospect of success might not be so hopeless as to be deemed clearly unfounded. If so, in carrying out the section 94 reconsideration the secretary of state was more generous to ZT than she would have been had she applied the rule 353 procedure. Whichever course was adopted, she would have rejected ZT’s further submissions and denied him a right to an in-country appeal.

Since ZT was seeking judicial review, as a matter of principle the correct approach was the familiar one of judicial review that involved the anxious scrutiny that was required where human rights were in issue.

Where, as in the present case, there was no dispute of primary fact, the question of whether or not the claim was clearly unfounded was only susceptible of one rational answer. If reasonable doubt existed as to whether the claim might succeed, then it was not clearly unfounded. It followed that a challenge to the secretary of state’s conclusion was a rationality challenge.

There was no way a court could consider whether her conclusion was rational other than by asking itself the same question that she considered. On the evidence before her and the reasoning in her decision letters, she was right to conclude that ZT’s claim was clearly unfounded since an appeal to the Asylum and Immigration Tribunal had no realistic prospect of success.

LORD HOPE, agreeing that the appeal be allowed, said that the Court of Appeal was not correct to find that secretary of state should have approached ZT’s further submissions on the basis that rule 353 applied.

Lord Carswell, Lord Brown and Lord Neuberger delivered speeches agreeing with Lord Phillips.

Solicitors: Treasury Solicitor; Riaz Khan & Co, Barnsley.

Culpability for supply of self-administered drug

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 6, 2009

Culpability for supply of self-administered drug
High Court of Justiciary
Published February 6, 2009
Michael Kane v HM Advocate
Kevin MacAngus v HM Advocate
Before the Lord Justice-General (Lord Hamilton), Lord Osborne, Lord Nimmo Smith, Lord Kingarth and Lord Mackay of Drumadoon
Judgment January 27, 2009

Where a controlled drug was supplied to another, who then administered it to himself causing his death, it was open to a jury to convict the supplier of culpable homicide.

The High Court of Justiciary, sitting as the Court of Criminal Appeal in Scotland, so held refusing the appeals of the appellants, Michael Kane and Kevin MacAngus, against the decisions of trial judges refusing their pleas to the relevancy of the indictments against them and remitting the cases for trial.

Mr Kane was charged with killing another by unlawfully supplying her, and injecting her, with diamorphine, a Class A drug, resulting in her death.

Mr MacAngus was charged with killing another by unlawfully supplying him with Ketamine, a class C drug, which the other administered to himself resulting in his death.

Mr Murray Macara, QC, solicitor, and Mr Brian Fitzpatrick, solicitor, for Mr MacAngus; Mr Chris Shead and Miss Jane Farquharson for Mr Kane; Mr James Wolffe, QC, Advocate-Depute, and Mr Donald Cameron for the Crown.

THE LORD JUSTICE-GENERAL, delivering the opinion of the court, said that a bench of five judges had been convened because the appeals raised questions about whether the approach adopted by the High Court of Justiciary in Lord Advocate’s Reference (No 1 of 1994) (1996 JC 76) to cases involving death following the supply of controlled drugs was correct in light of the decision of House of Lords in R v Kennedy (No 2) (The Times October 19, 2007; [2008] 1 AC 269).

In the context of crimes founded on reckless conduct, the Scottish courts had adopted a different approach to that taken in England and Wales: see Khaliq v HM Advocate (1984 JC 23) and Ulhaq v HM Advocate (1991 SLT 614).

The Scottish authorities tended to suggest that the actions, including in some cases deliberate actions, on the part of victims, among them victims of full age and without mental disability, did not necessarily break the chain of causation between the actings of the accused and victim’s death: see HM Advocate v John Robertson ((1854)) 1 Irv 469), HM Advocate v Patrick Slaven and Others ((1885) 5 Couper 694) and McDonald v HM Advocate (2007 SCCR 10).

In Kennedy the House referred to classic academic statements on the matter of the autonomy of human action, including passages from Hart and Honoré Causation in the Law (2nd edition 1985) and Glanville Williams “Finis for Novus Actus?” ([1989] CLJ 391).

In “Causation, Homicide and the Supply of Drugs” ((2006) 26 Leg Studies 139), Timothy H. Jones offered a critique of Hart and Honoré’s analysis. Professor Jones did not stand alone in offering a critique: see also chapter 7 of J. Feinberg Doing and Deserving (Princeton University Press, 1970).

Difficult questions, some of them matters of degree, might arise in deciding whether the drug user who died was fully informed in the relevant sense.

There must be some doubt as to whether the prostitute victim aged 15 in R v Khan (The Times April 7, 2008; [1998] Crim LR 830), coming to heroin probably for the first time, should have been regarded as truly capable of consenting to the risks inherent in heroin use. Her assumption of risk seemed to be at the borderline of voluntariness.

There might be cases short of duress or necessity and also of deception and mistake, where the vulnerability of the drug user to the actings of the drug supplier would be relevant to whether the direct causal link was made out.

Subject always to questions of immediacy and directness, the law might properly attribute responsibility for ingestion and so for death to the reckless offender.

Different jurisdictions had adopted different solutions. In several of the United States of America it had been held that the voluntary ingestion of a controlled drug did not break the causal chain on a charge of homicide. South Africa appeared also to have rejected the proposition that a voluntary act of an adult, by reason of the breaking of the chain of causation, absolved in all cases from criminal liability.

There was no reason why the criminal law of Scotland ought not, consistent with earlier authority, adopt a practical, but none the less principled, approach such as that set out by Lord Justice-Clerk Thomson in Blaikie v British Transport Commission (1961 SC 44, 49).

His Lordship had said that it was necessary for the law to come to a compromise with the doctrine of causation; expediency and good sense dictated that for practical purposes a line had to be drawn somewhere and, in doing so, the court was to be guided by the practical experience of the reasonable man rather than by the theoretical speculations of the philosopher.

His Lordship said that the adult status and the deliberate conduct of a person to whom a controlled drug was recklessly supplied by another would be important, and, in some cases, crucial factors, in determining whether the other’s act was or was not, for the purposes of criminal responsibility, a cause of death following upon ingestion of the drug. But a deliberate decision by the victim of the reckless conduct to ingest the drug would not necessarily break the chain of causation.

It could not be said in either case that a jury, properly directed, could not find the causal link proved.

Law agents: Paterson Bell; Drummond Miller; Crown Agent.

Late transfer of prisoner

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 6, 2009

Late transfer of prisoner
Court of Appeal
Published February 5, 2009
Regina (TF) v Secretary of State for Justice
Before Lord Justice Waller, Lord Justice Thomas and Lord Justice Aikens
Judgment December 18, 2008

A prisoner could be transferred to a mental hospital at the end of his sentence, only if two doctors recommended it and his medical condition and treatability justified it.

The Court of Appeal so stated when allowing an appeal by TF against the refusal by Mrs Justice Cox in the Queen’s Bench Division ([2008] EWHC 2912 (Admin)) of an application for judicial review of a direction by the Secretary of State for Justice to issue a warrant for his transfer to a hospital under section 47 of the Mental Health Act 1983 on the last day of his robbery sentence.

Mr Stephen Knafler and Mr Roger Pezzani for TF; Ms Katherine Olley for the Justice Secretary.

LORD JUSTICE WALLER said that where the secretary of state made a decision to issue a warrant directing transfer of a prisoner to a hospital under section 47 of the 1983 Act he had to be satisfied by reports from two medical practitioners of matters in section 47(1)(a) and (b).

If a decision was being taken at the end of the sentence, what must also be in the secretary of state’s mind was that a decision to direct a transfer could not be taken only on the ground that the prisoner would be a danger to the public if released, but could only be taken on the ground that his medical condition and its treatability justified the decision.

Where section 47 was proposed to be used at the end of the sentence, which would be in very exceptional circumstances, the onus was on the secretary of state to show that the mind of the decision-maker had focused on each of the criteria which it was necessary to satisfy if there was to be power to issue a warrant directing transfer to a hospital.

Lord Justice Thomas and Lord Justice Aikens agreed.

Solicitors: Campbell Taylor, Hackney; Treasury Solicitor.

Housing authority is not bound by family court residence order

Posted in House of Lords (case), Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 5, 2009

Housing authority is not bound by family court residence order
House of Lords
Published February 5, 2009
Holmes-Moorhouse v Richmond-upon-Thames London Borough Council
Before Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Speeches February 4, 2009

When a court in family proceedings made a shared residence order providing for children to spend alternate weeks with each parent, and one parent was homeless, a housing authority was not obliged, on account of that order, to regard the homeless parent as having priority need on the ground that he was a person with whom dependent children might reasonably expected to reside.

The House of Lords so held allowing an appeal by Richmond-upon-Thames London Borough Council from the Court of Appeal (Lord Justice Auld, Lord Justice Rix and Lord Justice Moses) (The Times November 19 2007; [2008] 1 WLR 1289) who had allowed an appeal by the father, Edward Holmes-Moorhouse, from the dismissal dated May 3, 2006, of Judge Oppenheimer, at Brentford County Court, of his appeal from the council’s decision on his application for assistance as a homeless person, that he did not have priority status as a homeless person with whom dependent children might reasonably be expected to reside.

Mr Andrew Arden, QC and Mr Matthew Hutchings for Richmond; Mr Jan Luba, QC and Mr Nicholas Nicol for Mr Holmes-Moorhouse.

LORD HOFFMANN said that the court, with the consent of the parents, ordered the father to leave the family home in Richmond-upon-Thames and provided that both parents were to have shared residence of three of their children. The order said the children should spend alternate weeks and half of their school holidays with each parent.

The father applied to the council’s housing services for assistance under Part VII of the Housing Act 1996, which imposed duties on housing authorities in respect of accommodation for people who were homeless or threatened with homelessness.

The council accepted that the father was threatened with homelessness but not that he had priority need. Section 189(1) of the 1996 Act listed the categories of persons who had priority need. Section 189(1)(b) included “a person with whom dependent children reside or might reasonably be expected to reside”.

The council said that the children could not reasonably be expected to reside with the father if that required the council to provide a second home for them, and the fact that the court thought it was in the interests of the children to have two homes did not bind the council.

His Lordship said that when a court determined any question with respect to the up-bringing of a child, the child’s welfare was paramount: see section 1(1) of the Children Act 1989. The court’s decision as to what would be in the interests of the welfare of children had to be taken in the light of circumstances as they were or might reasonably be expected to be.

The question for the housing authority under Part VII of the 1996 Act was not the same. In deciding whether children could reasonably be expected to reside with a homeless parent, it was not making the decision on the assumption that the parent had or would have suitable accommodation available.

On the contrary, it was deciding whether it should secure that such accommodation was provided. That brought in considerations wider than whether it would be in the interests of the welfare of children to do so.

The fact that both the court and the housing authority applied criteria which looked superficially similar did not mean that the questions were the same.

The contexts were quite different. The housing authority, applying the provisions of the Housing Act not the Children Act, had to answer the question whether the children could reasonably be expected to reside with the father in the context of a scheme for housing the homeless.

The phrase “might reasonably be expected” clearly referred to an impersonal objective standard. It clearly appealed to an objective social norm which had to be applied in the context of a scheme for allocating scarce resources. It was impossible to consider only what would be desirable in the interests of the family if resources were unlimited.

Part VII provided a safety net or last resort for people who would otherwise be homeless. But the 1996 Act also had to be interpreted with liberality, having regard to its social purposes, with recognition of the claims of others and the nature and scale of a housing authority’s responsibilities.

The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father.

In answering that question, it would be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.

The Court of Appeal had said that the fact that housing was a scarce resource should be regarded as irrelevant to the question of whether it was reasonable to expect the children to live with the father.

His Lordship disagreed with that proposition, whether as a matter of law, logic or social policy.

There was no reason in logic why the fact that Parliament had made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the father should require that question to be answered without regard to the purpose for which it was being asked, namely, to determine priority in the allocation of a scarce resource. To ignore that purpose would not be a rational social policy.

It did not mean that a housing authority could say it did not have the resources to comply with its obligations under the Act. But so far as the priorities to be applied involved questions of judgment, it must surely take into account the overall purpose of the scheme.

The Court of Appeal was also wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. It was relevant for the housing authority to know that the court considered that the children should live with both parents.

But the housing authority was not concerned to argue that the court should not make an order to that effect. The order, if made, would only be part of the material which the authority took into account in coming to its decision. The two procedures for deciding different questions must not be allowed to become entangled with each other.

The father and mother went back to the court to complain that the council had been uncooperative in implementing the shared residence order. The court then made a further order recording its concern that due to no fault of either party the shared residence order had not been implemented by reason of the father‘s inability to obtain suitable accommodation.

His Lordship said that the council’s reviewing officer was quite right to take no notice of that order. It was not the business of the court exercising its jurisdiction under the 1989 Act to try to exert pressure upon a housing authority to provide resources for one or other of the parties.

The reviewing officer had ample grounds upon which he was entitled to give a negative answer to the question whether in the context of the housing authority’s duty to make provision for the homeless, the children might reasonably be expected to live with the father as well as the mother.

Lord Scott and Lord Walker agreed. Lady Hale and Lord Neuberger delivered concurring speeches.

Solicitors: Mr Richard Mellor, Twickenham; Scully & Sowerbutts, Brentford.

Applying to set aside orders

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 4, 2009

Applying to set aside orders
Court of Appeal
Published February 4, 2009
Raja v Van Hoogstraten (No 9)

Since the introduction of the Civil Procedure Rules, applications for the setting aside of orders made without notice were governed by rule 23.10, and determined by the court exercising the discretion given by that rule in accordance with the overriding objective to do justice.

Where the order was one which affected the rights of the affected party in an important respect, it would be only in exceptional circumstances that the discretion would not be exercised to set aside the order, the crucial point being that the court should arrive at a just result.

The Court of Appeal (Lord Justice Mummery, Lord Justice Dyson and Lord Justice Maurice Kay) so held in a reserved judgment on December 17, 2008, when dismissing the appeal of the intervener, Tombstone Ltd, from the judgment of Mr Justice Lightman (The Times August 23, 2007) when he dismissed its claim, as intervener in a claim by the estate of Mohammed Sabir Raja and Nicholas van Hoogstraten, that an order and an amended writ of sequestration made in favour of the estate and its solicitors, Healys, had been irregularly obtained.

LORD JUSTICE MUMMERY said that there was no point in exercising the court’s inherent jurisdiction if that involved adopting the same approach and would lead to the same result as an application of the rules.

And it would be wrong to exercise that inherent jurisdiction to adopt a different approach and arrive at a different outcome from that which would result from an application of the rules: Nelson v Clearsprings (Management) Ltd ([2007] 1 WLR 962).

Prisoners in Iraq are not under UK jurisdiction

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 4, 2009

Prisoners in Iraq are not under UK jurisdiction
Court of Appeal
Published February 4, 2009
Regina (Al-Saadoon and Another) v Secretary of State for Defence
Before Lord Justice Waller, Lord Justice Laws and Lord Justice Jacob
Reasons January 21, 2009

Iraqi detainees held in a United Kingdom internment facility in Iraq on the authority of the local criminal court were not under the jurisdiction of the UK for the purposes of the European Convention on Human Rights.

The Court of Appeal so held, inter alia, when giving reasons for dismissing on December 30, 2008 the appeal of Faisal Attiyah Nassar Al-Saadoon and Kha Laf Hussain Mufdhi against the dismissal by the Queen’s Bench Divisional Court (Lord Justice Richards and Mr Justice Silber) ([2008] EWHC 3098 (Admin)) of their application for judicial review of a decision by the Secretary of State for Defence to transfer them from the divisional internment facility at Basra international airport, where they were held as criminal detainees on the authority of the Basra Criminal Court, into the custody of the Iraqi Higher Tribunal to be tried for the murder of two British servicemen.

The Divisional Court had held that the applicants were at real risk of the death penalty if transferred; that they were under UK jurisdiction for the purposes of article 1 of the Human Rights Convention but that the UK was obliged under international law to transfer them into the custody of Iraq and compliance did not violate their Convention rights.

Ms Karon Monaghan, QC, Mr Guy Goodwin Gill and Ms Helen Law for the applicants; Mr Clive Lewis, QC, Mr Tim Eicke and Mr Samuel Wordsworth for the secretary of state.

LORD JUSTICE LAWS, having established that the real risk of death test was met, said that the scope of the Convention was essentially territorial. Article 1 provided that party states shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. What was meant by “within their jurisdiction”?

States had outposts (his Lordship used the word neutrally, not as a term of art) of various kinds in the territory of other states. The internment facility might be described as such an outpost, operated by the UK in the territory of Iraq.

His Lordship said that it was not easy to identify precisely the scope of the article 1 jurisdiction where it was said to be exercised outside the territory of the impugned party state, because the learning made it clear that its scope had no sharp edge; it had to be ascertained from a combination of key ideas which were strategic rather than lexical.

Drawing on Bankovic v Belgium (Application No 52207/99) ((2001) 11 BHRC 435) and the House’s opinions in R (Al-Skeini) v Secretary of State for Defence (The Times June 14, 2007; [2008] 1 AC 153) his Lordship suggested that there were four core propositions, though each needed some explanation:

1 It was an exceptional jurisdiction.

2 It was to be ascertained in harmony with other applicable norms of international law.

3 It reflected the regional nature of the Convention rights.

4 It reflected the indivisible nature of the Convention rights.

The first and second propositions implied, as perhaps did the term “jurisdiction” itself, an exercise of sovereign legal authority, not merely de facto power, by one state on the territory of another. That was of itself an exceptional state of affairs, though well recognised in some instances such as that of an embassy.

The power must be given by law, since if it were given only by chance or strength its exercise would by no means be harmonious with material norms of international law, but offensive to them; and there would be no principled basis on which the power could be said to be limited, and thus exceptional. It was impossible to reconcile a test of mere factual control with the limiting effect of the first two propositions, and, indeed, that of the last two.

The first two propositions, understood as his Lordship suggested, conditioned the others.

If a state was to exercise article 1 jurisdiction outside its own territory, the regional and indivisible nature of the Convention rights required the existence of a regime in which that state enjoyed legal powers wide enough to allow its vindication, consistently with its obligations under international law, of the panoply of Convention rights; rights which might however, in the territory in question, represent an alien political philosophy.

The Convention’s natural setting was the espace juridique of the party states; if, exceptionally, its writ was to run elsewhere, that espace juridique must in considerable measure be replicated.

In short, the state must have the legal power to fulfil substantial governmental functions as a sovereign state. It might do so within a narrow scope, as in an embassy, consulate, military base or prison; it might, in order to do so, depend on the host state’s consent or the mandate of the United Nations; but however precisely exemplified, that was the kind of legal power the state must possess: it must enjoy the discretion to decide questions of a kind which ordinarily fell to a state’s executive government. If the article 1 jurisdiction was held to run in other circumstances, the limiting conditions imposed by the four propositions set out above would be undermined.

On the facts, the UK was not before December 31, 2008, exercising any power or jurisdiction in relation to the applicants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign state. After December 31, 2008, British forces enjoyed no legal power to detain any Iraqi. Had they done so, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such person so detained.

Lord Justice Waller and Lord Justice Jacob agreed.

Solicitors Public Interest Lawyers, Birmingham; Treasury Solicitor.

Burden on employer to prove risk assessment

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 3, 2009

Burden on employer to prove risk assessment
Court of Appeal
Published February 3, 2009
Egan v Central Manchester and Manchester Children’s University Hospitals NHS Trust
Before Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith
Judgment December 15, 2008

Where a hospital employee was injured using a mechanical hoist to move a patient, the burden was on the employer to prove that it had taken appropriate steps to reduce any risk to the lowest reasonably practicable level.

The Court of Appeal so stated when allowing the appeal of the claimant employee, Donna Egan, from the dismissal by Judge Tetlow, at Salford County Court, on April 18, 2008, of her claim against the defendant employer, Central Manchester and Manchester Children’s University Hospitals NHS Trust, for personal injuries suffered on June 17, 2003, which she alleged had been caused by the trust’s breach of its duty under, inter alia, regulation 4(1)(b) of the Manual Handling Operations Regulations (SI 1992 No 2793) and the Work Equipment Regulations (1998 No 2306).

The claimant, a nurse, had been injured when a mechanical hoist that she had been using to transport a disabled patient into a bath had stopped suddenly when the hoist’s wheels jammed. Mr Martin Littler for the nurse; Mr James McKeon for the trust.

LADY JUSTICE SMITH said that it was clear from the judgment that the judge had not given separate consideration to regulation 4(1)(b)(ii). He should have done so because the requirements of that regulation were separate from and additional to the requirement, under regulation 4(1)(b)(i), to carry out a risk assessment.

Of course, the two were related, in that a risk assessment would show an employer what steps it ought to take in order to reduce the risk of injury to the lowest level reasonably practicable. Also, if an employer had carried out a careful and thorough risk assessment and had taken all steps which appeared from that assessment to be appropriate to reduce the risks involved to the lowest reasonably practicable level, the employer would be in a strong position to defend itself under regulation 4(1)(b)(ii).

However, where, as here, no risk assessment had been carried out, the judge ought to focus on that regulation which imposed a duty to take positive action to reduce risk.

The judge would approach that regulation on the basis that once it had been shown that the manual handling operation carried some risk of injury, then the burden of proof was on the employer to plead and prove that it had taken appropriate steps to reduce the risk to the lowest level reasonably practicable.

In practice, if a claimant wanted to allege that there were steps which should have been taken and the employer said there were none, there would be an evidential burden on the claimant to advance those suggestions, even though the legal burden would remain on the employer.

So although the judge’s approach had not been correct, it had been capable of leading him to the right conclusion.

Accordingly, the employer had been in breach of its duty under regulation 4(1)(b)(ii) and was primarily liable for the injury.

On the question of contributory negligence each party had caused the injury in that, if either had taken proper care, the accident would probably have been avoided. Her Ladyship was unable to distinguish between the two parties when considering blame-worthiness; neither side could or should be heavily criticised. Accordingly, the parties should share responsibility equally, so that the defendant was liable to the claimant in 50 per cent of the damages.

Lord Justice Keene and Lord Justice Sedley agreed. Solicitors: Donns LLP, Manchester; Weightmans LLP, Liverpool.

EU charity tax allowance

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 3, 2009

EU charity tax allowance
Court of Justice of the European Communities
Published February 3, 2009
Persche v Finanzamt Lüdenscheid
Case C-318/07

Article 56 EC on the free movement of capital enabled eligible tax deductions on gifts made to charitable bodies in the taxpayer’s state also to be claimed on gifts made to charities within the European Union outside the taxpayer’s state.

Where a taxpayer claimed, in one member state, the deduction for tax purposes of gifts to bodies established and recognised as charitable in another member state, such gifts came within the compass of the provisions of the EC Treaty relating to the free movement of capital, even if they were made in kind in the form of everyday consumer goods.

The Grand Chamber of the Court of Justice of the European Communities so ruled on January 27, 2009, when giving a preliminary ruling under article 234 EC on a reference by the Bundesfinanzhof, Germany, in proceedings in which the claimant appealed against his income tax assessment by the German tax authority after it had refused to allow the claimant to deduct as a special expense a gift of, inter alia, bedlinen, towels and toys that he had made to a children’s home established as a charity in Portugal, on the ground that under German law such a deduction could be made only if the charity was established in Germany.

No defamatory meaning

Posted in Times Law Report by mrkooenglish on February 2, 2009

From The TimesJanuary 15, 2009

No defamatory meaning
Court of Appeal
Published January 15, 2009
Freeguard and Another v Marlet Homes Ltd

The words “Let me know if he is abusive to you” were not in their ordinary and natural meaning capable of bearing any defamatory meaning or innuendo.

The Court of Appeal (Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith) so stated on December 4, 2008, when dismissing the appeal of Roger Freeguard from the dismissal on February 5, 2008, by Judge Mackie, QC, sitting as a judge of the Queen’s Bench Divison, of an action by Mr Freeguard and his wife, Margo Ann Freeguard, who did not appeal, claiming damages for defamation against the defendant, Marlet Homes Ltd.

LORD JUSTICE SEDLEY said that in separate litigation concerning the defendant’s lessees, a complimentary slip was produced in court written to a messenger by the defendant’s employee containing “Let me know if he is abusive to you”.

On seeing that document the claimants sued the defendant for defamation.

The judge struck out the action on the basis that those words were not capable of constituting defamation. Also, the parties had not realised that the claimant could not bring an action on a document produced in court.

Nevertheless, looking at the context and the circumstances under which the document-came to light, the words written on the slip were not capable of bearing a defamatory meaning and there was no innuendo.

Preservative effect of tenant’s notice

Posted in Times Law Report by mrkooenglish on February 2, 2009

From The TimesJanuary 15, 2009

Preservative effect of tenant’s notice
Court of Appeal
Published January 15, 2009
Portman Estate Nominees (One) Ltd and Another v Ackerman and Another
Before Lord Justice Tuckey, Lord Justice Jacob and Sir William Aldous
Judgment December 16, 2008

Service of a notice by a tenant seeking to acquire a new lease of a flat had the effect of preserving the position pending determination of the claim and did not provide for continuation of only a part of the lease.

The Court of Appeal so held in dismissing an appeal brought by the tenants, Mark Ackerman and Barry Ackerman, against the decision of Judge Cowell, at Central London County Court on November 30, 2006, that a notice under section 8 of the Leasehold Reform Act 1967 served on the landlords, Portman Estate Nominees (One) Ltd and Portman Estate Nominees (Two) Ltd, who were substituted by an order of August 9, 2007, for the original claimants, in respect of 59 Great Cumberland Place, Westminster, was invalid and the tenants were not entitled to enfranchise the freehold.

Paragraph 5 of Schedule 12 to the Leasehold Reform, Housing and Urban Development Act 1993 provides: “(1) Where by a notice under section 42 a tenant makes a claim to acquire a new lease of a flat, then during the currency of the claim and for three months thereafter the lease of the flat shall not terminate …”

Mr Anthony Radevsky for the tenants; Mr Jonathan Gaunt, QC and Mr Edward Cole for the landlords.

SIR WILLIAM ALDOUS said that the tenants contended that they were entitled to acquire the freehold by enfranchisement under the 1967 Act.

The landlords disputed that contention on two grounds. Only the first was relevant, namely that on the date when the claim was made the tenants were no longer tenants of the whole of No 59 under a tenancy to which the 1967 Act applied. That depended upon whether the termination of the lease was prevented by service of a section 42 notice under the 1993 Act.

The landlords were freehold owners of No 59. It was let for a term of 50 years expiring on September 29, 2001, at a ground rent of £225 per annum. That term was assigned to the tenants on May 28, 1998.

No 59 comprised five flats. The tenants resided in Flat 3. By an initial notice served under section 13 of the 1993 Act, the tenants sought collective enfranchisement of No 59. A counter-notice was served and proceedings started. That claim was dismissed on the ground that No 59 did not consist of a single flat. By notice dated September 24, 2001, served under section 42 of the 1993 Act, the tenants claimed to exercise the right to acquire a new lease of Flat 3. Subsequently, the tenants first gave notice to acquire the freehold under section 8 of the 1967 Act and then gave notice claiming to acquire the freehold of No 59 under section 8 of that Act.

The landlords’ case, which succeeded before the judge, was that when the tenants served their notice under section 42 they were no longer tenants of the whole of the property because the lease had expired by effluxion of time on September 28, 2001. To arrive at that conclusion the judge rejected the submission of the tenants that the lease had been extended by service of the section 42 notice on September 24, 2001.

His Lordship accepted the submission of the landlords that the wording of paragraph 5 of Schedule 12 to the 1993 Act was clear. There was no reason why the lease in so far as it demised the flat should not be severed. All that paragraph 5 was doing was to preserve the position pending determination of the claim.

That being so, the only construction which provided a sensible and commercial result and which was consistent with the Act as a whole, limited continuation to the lease in so far as it demised flat 3.

Lord Justice Jacob and Lord Justice Tuckey agreed.

Solicitors: Wallace LLP; Farrer & Co

Respect for domestic tribunal

Posted in Times Law Report by mrkooenglish on February 2, 2009

From The TimesJanuary 15, 2009

Respect for domestic tribunal
Court of Appeal
Published January 15, 2009
Salsbury v The Law Society

Absent any error of law, the High Court had to pay considerable respect to the decision of an expert and informed domestic tribunal.

The Court of Appeal (Sir Mark Potter, President, Lady Justice Arden and Lord Justice Jackson) so held on November 25, 2008, when allowing an appeal by the Law Society against the decision of the Divisional Court (Lord Justice Dyson and Mr Justice Lloyd Jones) ([2008] EWHC 889) to quash the striking-off order made on December 18, 2007, by the Solicitors Disciplinary Tribunal, against Brendan John Salsbury and to substitute a three-year suspension.

LORD JUSTICE JACKSON said that the leading case was Bolton v Law Society ([1994] 1 WLR 512). Reviewing the later authorities, his Lordship concluded that Bolton remained good law subject to the qualification that the tribunal must take into account the rights of the solicitor under articles 6, right to a fair trial, and 8, right to respect for private and family life, of the European Convention on Human Rights.

It was an overstatement to say that a very strong case was required before the court would interfere. Absent any error of law, the High Court must pay considerable respect to the decision of an expert and informed tribunal.

Here the tribunal’s decision was correct in law and on the facts and the Divisional Court was not entitled to interfere with the sentence since it could not be satisfied that the sentence was clearly inappropriate.

Payers cannot trace money

Posted in Times Law Report by mrkooenglish on February 2, 2009

From The TimesJanuary 14, 2009

Payers cannot trace money
Court of Appeal
Published January 14, 2009
Moriarty and Another v Atkinson and Others
Before Lord Justice Dyson, Lord Justice Jacob and Lord Neuberger of Abbotsbury
Judgment December 16, 2008

If a company, in breach of its promise to a payer to keep money in a separate client account to be held on trust, paid it into a deficit current account to be used to settle the company’s debts, the payer could not trace the money paid into the current account since he acquired no proprietary right to trace the money in question which had disappeared before forming trust fund in the client account.

The Court of Appeal so stated dismissing the appeal of Malcolm Frederick Atkinson, Bettina Ann Atkinson, Paul Michael Clarke and Claire Suzanne Clarke, respondents in the Companies Court to an application by Jane Bronwen Moriarty and Myles Anthony Halley, as administrators of B.A. Peters plc, in administration, from Mr Nicholas Strauss, QC, sitting as a deputy Chancery Division judge ([2008] EWHC 2205 (Ch)).

The judge held that the respondents were ordinary unsecured creditors of the company in respect of moneys paid by them to the company to be held on trust by it in a client account pending dispersal of the funds in the purchase of boats from the company before it had gone into administration on August 14, 2007.

The company sold boats both on its own account and as brokers for its clients in the normal course of its business; it received £97,500 from the respondents to hold in a client account, but, save for a small amount which was paid in to the client account, paid it in a deficit current account mixed with other funds which had been used to pay off debts before the company went into liquidation. Mr Christopher Aylwin for the respondents; Ms Lexa Hilliard for the administrators.

LORD NEUBERGER said that it was true that as between the respondents and the company, the money in question should have formed part of the balance in the client account, and the fact that it did not do so was attributable to the company’s breach of trust.

It was also true that equity treated as done that which ought to have been done.

Accordingly, there was some attraction in the notion that, as between the company and the respondents, the client account should be treated as having received the money in question, at least to the extent that that would not prejudice any other proprietary claim.

However, that would seem to be taking counterfactual assumptions too far. The respondents appeared to have had a good claim against the company for breach of trust, for not having paid the money in question into the client account, but that did not mean that they had a proprietary interest in that account.

The court should not be too ready to extend the circumstances in which proprietary claims could be made, bearing in mind the consequences to unsecured creditors.

To those in the commercial world, it should sometimes seem almost a matter of happenstance as to whether or not a particular commercial creditor, with no formal security, would have a proprietary claim.

Every time such a claim was held to exist in the case of an insolvent debtor, the likely consequence was that one commercial creditor would get paid in full to the detriment of all the other commercial creditors, with no formal security and no proprietary claims.

The “trust fund” in the present case was the client account, and there had been no breach of trust in relation to any money in that account. Unfortunately for the respondents, the breach of trust occurred before the money in question could become part of the trust fund.

Indeed, the breach of trust had the consequence that the money had never become part of a trust fund, and it resulted in the money ceasing to exist.

Lord Justice Dyson and Lord Justice Jacob agreed.

Solicitors: Lyons Davidson, Bristol; Pinsent Mason.