So-called ‘gentlemen’s agreements’ which have not been professionally drafted are unlikely to be worth the paper they are written on. That was certainly so in the case of a woman who claimed that an ex-boyfriend had promised to pay her £50,000 a year, index-linked for life, after she gave birth to his daughter.
Following the end of their relationship, the woman received a handwritten document from her ex which, on the face of it, guaranteed that he would pay her that annual sum by quarterly instalments. She claimed that the man had also said words to the effect that the document was ‘as good as a bank note’ and that he would in future treat her ‘as a wife or ex-wife’.
Many years after the document was written, the woman launched proceedings with a view to enforcing its terms. In defending the claim, the man described the document as ‘an agreement of sorts’. He said that he had written it to give some comfort to the woman but that he had not intended to make any promise that would be binding in law. Had that been his intention, he said he would have consulted a lawyer first.
In dismissing the woman’s claim, the High Court noted that the document stated on its face that the payments exceeded any legal obligations the man might have and that he was acting out of ‘love and kindness’. Although the document was designed to look like a legal agreement, using formal language, the man had intended no more than a non-binding gentleman’s agreement.
Ambiguities in the document – including as to index-linking and whether the woman’s household expenses would be paid in addition to the £50,000 a year – also weighed against it having binding effect. It was in any event inherently unlikely that the man would have agreed to pay such sums on an open-ended basis for the whole of the woman’s life.
The woman’s claim that the man had made a subsequent binding promise to pay her £200,000 was also rejected. The evidence indicated that that assurance, made in the context of child contact proceedings in a foreign jurisdiction, had been given for the benefit not of the woman but of the former couple’s daughter. Even had a promise been made for the woman’s benefit, it would have lacked contractual force in that there had been no intention to create legal relations.
Houses in multiple occupation (HMOs) are for good reasons heavily regulated, and landlords and letting agencies that fail to measure up to required standards can expect to be hit hard in the pocket. In one case, a letting agency which had no reasonable excuse for breaking the law received a stiff financial penalty.
The case concerned a two-bedroom house which, when a local authority housing officer visited, was occupied by five people, forming three separate households. The agency, which bore responsibility for managing the property, was fined £25,000 by the council for breaches of the Management of Houses in Multiple Occupation (England) Regulations 2006 which, amongst other things, require that HMOs be fitted with suitable fire doors and fire alarm systems.
In challenging that decision before the First-tier Tribunal (FTT), the agency argued that it had a reasonable excuse in that it was unaware that the property was being used as an HMO. The property had been let to a private individual on terms which prohibited subletting or sharing and the agency’s director asserted that, when he visited the property, he saw no signs that it was in multiple occupation.
That defence, however, did not persuade the FTT, which found that the director either knew or ought to have known that the property was an HMO. The agency’s penalty was increased to £27,500, although a separate penalty of £27,500, which the council had imposed on one of the agency’s rent collectors, was reduced to £15,000.
In dismissing the agency’s appeal against that outcome, the Upper Tribunal (UT) rejected arguments that it was for the council to establish beyond reasonable doubt that the agency had no reasonable excuse for failing to meet its obligations. The FTT was entirely correct to find that the burden was on the agency to prove that it had such an excuse on the balance of probabilities.
The UT noted that if the director – an experienced letting agent – knew that the property was being used as an HMO, the agency could have no excuse. If he ought to have known that that was the case, the agency’s excuse for failing to comply with the Regulations was not a reasonable one.
The COVID-19 pandemic represents a public emergency which is threatening the life of the nation. A High Court judge wrote those words in reaching the momentous conclusion that, whilst the crisis persists, derogation from certain fundamental human rights is not merely justified, but essential.
The judge gave his ruling in the case of a profoundly deaf dementia sufferer in his 80s who was living in a care home which, in common with almost all such facilities, has been closed to visitors during the pandemic. His daughter lodged an emergency application with a view to achieving his discharge from the care home and his return home with an appropriate package of support. Members of his family had previously visited him very frequently – his daughter almost every day – and there was no doubt that the embargo had had a seismic impact on his quality of life.
His right to liberty and personal security, enshrined in Article 5 of the European Convention on Human Rights (ECHR), together with his Article 8 right to respect for his home and family life, were clearly engaged and the judge emphasised that there was a need for heightened judicial vigilance to ensure that his fundamental rights and those of others in a similar position were not eclipsed by the COVID-19 crisis.
However, Article 15 of the ECHR permits signatory states to derogate from Articles 5 and 8 if such a course is strictly required in times of war or other public emergency threatening the life of the nation. After much reflection, the judge ruled that the pandemic represented just such an emergency and that a derogation was justified. He noted that no judge of his generation could ever have expected to have to reach such a conclusion.
Fundamental rights and freedoms are required to be protected as vigilantly at times of crisis as in less challenging circumstances. Given the particular threat that COVID-19 poses to the lives of the elderly and those with pre-existing medical conditions, however, the derogation was essential. The judge emphasised that it would only continue for so long as the unprecedented public health crisis persists and that notification of his decision would be sent to the Council of Europe.
Returning to the facts of the case, the judge noted that the man – who was privately funding his stay in the care home – was adamant that he does not have dementia and that he wished to return home. His family was divided as to where his best interests lay and his daughter was fulsome in her praise of the kind and attentive care he had received from the care home’s staff.
Every effort had been made to meet the family’s concerns amidst the stark realities of the crisis. A plan had been formulated to educate the man, who was able to use a communication board, to the world of Skype and instant messaging. Members of his family would also be permitted, by arrangement, to wave at him through his bedroom window. The judge was satisfied that, although such arrangements would require time and creativity, they represented a proportionate way forward which respected the man’s dignity and would meet his particular needs so far as possible. He opened the way for a doctor to conduct Skype or FaceTime interviews with the man in order to assess his capacity to make important decisions for himself.
Those who pursue employment complaints without legal representation start off at a great disadvantage, but tribunals will generally bend over backwards to ensure that they receive a fair hearing. A Court of Appeal ruling, however, underlined the serious challenge that doing justice in such cases can present.
An administrator had, in her own words, ‘walked out’ of her job on the basis that her boss’s humiliating treatment of her had rendered her position intolerable. On reading her subsequent complaint to an Employment Tribunal (ET), it would have been apparent to an employment lawyer that she had probably resigned and that her claim, in legal terms, was likely to be one of constructive unfair dismissal.
At a case management hearing, however, the woman, who was representing herself without legal advice, insisted that she had been actually dismissed. She said that she had not intended to resign and had not done so. The list of issues that was sent forward for determination by the ET thus did not include a claim of constructive unfair dismissal. Her claim of ordinary unfair dismissal failed. That conclusion was subsequently upheld by the Employment Appeal Tribunal (EAT).
In allowing her appeal against that outcome, the Court noted that, where litigants appear in person, it is good practice for ETs to consider whether the list of issues placed before them properly reflects the real issues in dispute. Amending such a list in the interests of justice would not amount to an impermissible descent into the arena.
The material placed before the ET indicated that it was in truth far more likely than not that the woman had resigned and that the real issue between the parties was, or should have been, why she did so. Although the ET had asked both sides to confirm the list of issues at the start of the hearing, that was not enough to ensure that justice was done.
The list of issues should have been amended so as to enable the ET to consider claims of ordinary and constructive unfair dismissal as alternatives. The woman’s case was sent back to the ET for consideration of the question of whether she had resigned in circumstances in which she was entitled to terminate her contract without notice by reason of her employer’s conduct.
To what extent do employers bear indirect, or vicarious, liability for breaches of the Data Protection Act 1998 (DPA) perpetrated by their staff? The Supreme Court decisively resolved that issue in a test case concerning a supermarket worker who placed highly confidential payroll information online as part of a personal vendetta.
The man worked for a supermarket chain as part of its internal audit team. Having previously received a verbal warning following disciplinary proceedings, he bore a grudge against the chain. After being tasked to send payroll data for the chain’s entire workforce to external auditors, he took the opportunity to make a personal copy.
He uploaded the data onto a publicly accessible file-sharing website and also sent it anonymously to three newspapers, posing as a concerned member of the public. They refrained from publishing the material and one of them alerted the chain, which took immediate steps to have the data removed from the website and to protect is staff. The man was subsequently prosecuted and jailed.
Some affected employees were concerned that the privacy of their personal data had been compromised and brought proceedings against the chain. Their claims were upheld by a judge on the basis that the man had acted in the course of his employment and that the chain was vicariously liable for his breaches of the DPA, misuse of private information and breaches of confidence. The judge’s ruling was subsequently confirmed by the Court of Appeal.
In upholding the chain’s challenge to that outcome, the Supreme Court noted that, in order to establish vicarious liability on the chain’s part, the employees had to show that the man’s wrongdoing was closely connected to the field of activities he was authorised to perform in the ordinary course of his employment. Such a connection had to be sufficient to make it right, as a matter of social justice, for the chain to be held indirectly liable for the man’s misconduct.
The reason why the man acted as he did could make no material difference to the outcome. It was, however, highly relevant whether he was acting on his employer’s business or for purely personal reasons. Although he was authorised to transmit the data to external auditors, his wrongful public disclosure of the material was not so closely connected to that task that it could fairly be viewed as having been made while acting in the ordinary course of his employment.
On long-established principles, the Court noted that an employer would not normally be held vicariously liable where, far from being engaged in furthering its business, an employee is pursuing a personal vendetta. The fact that the man’s employment afforded him the opportunity to commit the wrongful act was not sufficient to warrant the imposition of vicarious liability on the chain.
Qualifying apartment dwellers have a right to acquire the freehold of the buildings where they live, but does that extend to the subsoil beneath the premises and the airspace above? The Court of Appeal addressed that critical issue in a guideline decision.
The case concerned a purpose-built block of 45 flats, the tenants of which sought to exercise their right to acquire the property’s freehold under the Leasehold Reform, Housing and Urban Development Act 1993.
A stumbling block in their path, however, was that third parties had acquired leasehold interests in respect of most of the building’s basement, the subsoil beneath the whole premises and the airspace above it to a height of seven metres.
An issue thus arose as to whether the tenants’ entitlement to acquire the building’s freehold extended to a right to acquire those leasehold interests. In a ruling which was subsequently affirmed by the Upper Tribunal, the First-tier Tribunal answered that question in the affirmative.
In dismissing the leaseholders’ challenge to that outcome, the Court noted the general rule that, once constructed, a building becomes part and parcel of the land on which it stands. The same applies to the airspace above the built structure.
The Court found that the rights and premises demised by the leases formed part of the building and that to prevent the tenants acquiring the leasehold interests would produce a result which was undesirable and impracticable, if not actually absurd. They would in effect be left with only the filling to the sandwich, without the airspace and subsoil which formed its two outer slices.
The basement, subsoil and airspace were properly viewed as common parts of the building. It was reasonably necessary for the tenants to acquire all of those parts in order to enable proper maintenance and management of the roofspace and basement, in which common facilities were located.
It cannot be business as usual during the COVID-19 pandemic, but judges are rising to the challenge of ensuring that the economic life of the nation does not wither. In one case, however, the High Court ruled that, in such uncertain times, a proposed transfer of business between two insurance companies had to be delayed.
Before the crisis began, Legal and General Assurance Society Limited (L&G) applied for the Court’s sanction under the Financial Services and Markets Act 2000 for the transfer of insurance business to ReAssure Limited (ReAssure). Some policyholders objected to the proposal and, following a three-day hearing, the Court was preparing to hand down its judgment on the matter.
L&G and ReAssure were anxious for the Court to publish its ruling prior to the end of the financial year. However, due to the severe operational challenges posed by the global pandemic, the companies’ lawyers accepted that an adjournment was required and that judgment would have to be deferred.
With the country in lockdown, it could not be said with a sufficient degree of certainty that the mechanics of the business migration would proceed precisely as planned. The companies agreed that the level of risk of material detriment to policyholders was such that the transfer should not proceed at the present time.
The companies requested that the Court publish an interim judgment, giving its conclusions on the issues that had so far been aired. It was argued that, in such abnormal times, there was value in the Court setting out what its conclusions would have been in the absence of operational issues arising from COVID-19. Such a ruling would enable the companies to make an informed decision as to whether to ramp up or stand down their contingency planning.
The Court had sympathy with the companies’ desire to know where they stand but ruled that handing down an interim judgment would not be the right course to take. Its duty was to consider whether it would be appropriate to sanction the scheme in all the circumstances that pertained on the date of the adjourned hearing.
It was impossible to know precisely the extent to which the pandemic would affect the companies’ business. Its impact might extend beyond purely operational matters and alter the balance for and against the proposed transfer. If COVID-19 resulted in a significant change in circumstances, the Court would probably have to hear further submissions before publishing a final judgment.
It is the mark of a society governed by the rule of law that, where people suffer injury or death due to the misconduct of the servants or agents of the state, compensation is paid in full. In a prime example of that happening, the loved ones of a civilian shot dead by a British soldier during the Northern Ireland troubles won more than £260,000 in damages.
During the notorious events of Bloody Sunday – 30 January 1972 – the 41-year-old painter and decorator was taking part in his first civil rights march in Londonderry when soldiers opened fire. A respected member of his community and a married father of six children, he took refuge with others behind a wall. When he moved out from the shelter, either to help one of the victims or to signal the soldiers to cease firing, he was probably waving a piece of towelling or a white handkerchief. A soldier took aim and shot him at a range of about 35 metres. He died instantly.
More than 40 years after the event, and following the outcome of the Bloody Sunday Inquiry, his widow launched proceedings against the Ministry of Defence (MoD). Although she died before her case came to court, a solicitor acting as executor of her estate persisted with her claim.
The MoD accepted that the man, and all other civilians who were injured or killed on Bloody Sunday, were innocent victims and admitted liability for assault, battery and trespass to the person. It made no attempt at justifying the soldier’s action and did not seek to argue that the widow had left it too late to lodge her claim. Following a trial, her estate was awarded £264,985 in damages, plus interest.
The award included £15,000 in aggravated damages to reflect society’s abhorrence of the soldier’s act and the pain and suffering that the man had endured prior to his death. The judge found that he would have been filled with fear and dread as the shooting started, coupled with a sense of indignation and hurt at being the innocent victim of a blatant, unprovoked and unjust attack by members of the army.
The MoD appealed against that element of the award, arguing that, as the man’s death was instantaneous, he would not have suffered mental distress arising from the soldier’s wrongful act in pulling the trigger. In rejecting the challenge, however, the Court of Appeal in Northern Ireland ruled that, viewed in the wider context of the events on Bloody Sunday, the award of aggravated damages was unimpeachable.
The threatening and aggressive conduct of soldiers prior to the killing – the man was the last civilian to be shot dead on Bloody Sunday – was capable of generating in any person of normal mental fortitude in the area a reasonable apprehension of being shot or wounded. The Court concluded that that conduct was itself capable of amounting to a continuous assault for which the MoD bore indirect legal responsibility.
Even people of the greatest intellect can become mentally frail in old age and that is one good reason why it makes sense to execute a professionally drafted will sooner rather than later. A case on point concerned an eminent former judge who was suffering from short-term memory loss when he signed his final will.
The combined effect of a will that the man signed in 2001 and a subsequent codicil was that, if his second wife died before him and bequeathed him their marital home in her will, he would leave it to his two sons. His wife did predecease him and did leave him the house. However, following her death, he made a new will in 2008 by which he left the property to his wife’s two stepdaughters.
Following his death, one of his sons challenged the 2008 will on the basis that he by then lacked the mental capacity required to make a valid will. It was argued that he was suffering from undiagnosed dementia and that there was no rational explanation for his change of heart concerning who should inherit the property. He was said to have made the will on a false premise and in the illusory belief that fairness demanded that the property be left to the stepdaughters.
Ruling on the matter, the High Court accepted that he was probably suffering from the early stages of Alzheimer’s disease when he made the 2008 will. His ability to remember events in the recent past had declined to the point where he tended to repeat himself during conversations. He was also grief-stricken, his wife having only recently died. His high level of intellect had, however, assisted him in overcoming those difficulties and his long-term and working memory remained functional.
Despite his uncompromising reputation when he was on the bench, the Court noted that the evidence revealed an emotional and loving side to his character. He had become very attached to the stepdaughters, who cared for him and helped him to cope with his grief, considering them to be part of his family.
He took the view that the property, which had been built by the wife and her former husband, was the stepdaughters’ family home and that the right thing to do was to leave it to them. On an emotional level, he felt that the property belonged to them and bequeathing it to them was what he wanted to do. Although he had not been medically assessed prior to making the 2008 will, the document was rational on its face; it had been duly executed following legal advice and there was no dispute that he knew and approved of its contents.
It could not be said that a disorder of his mind had poisoned his affections, perverted his sense of right or prevented him from exercising his natural faculties. He was able to comprehend and appreciate the moral claims to which he ought to give effect by his will. The 2008 will was declared valid and the Court directed its admission to probate.
Government bureaucratic delays are sadly a well-known fact of life, but can they give rise to a right to compensation? The Court of Appeal tackled that fundamental issue in the case of an immigrant who was unable to work for more than two years due to a Home Office delay in sending him a biometric residence permit.
Following numerous applications, the Mauritian national, who had a British wife and child, was granted limited leave to remain in the UK for 30 months and the right to work here during that period. He should have been sent a residence permit, confirming his entitlement to work, within weeks but did not receive one for over two years.
He launched judicial review proceedings, claiming damages for what was alleged to be the unlawful delay, but his case was dismissed by the Upper Tribunal (UT) at a preliminary stage. The UT ruled that it had no jurisdiction to entertain such a claim. It also found that his case was in any event unviable in that he could not establish that the delay resulted in a complete deprivation of his right to work.
In upholding his appeal against that outcome, the Court noted that, as a matter of real-world practicality, the man was prevented altogether from securing employment during the period of delay. It would have been unrealistic to expect him to leave his wife and child in Britain and return to Mauritius in search of work. It was therefore arguable that the delay amounted to a breach of his right to respect for his home and family life, enshrined in Article 8 of the European Convention on Human Rights.
The Court was also narrowly persuaded that the man had an arguable claim in negligence against the Home Office on the basis that it voluntarily assumed responsibility to send him the residence permit promptly and that its prolonged failure to do so foreseeably caused him loss. The Court granted the man permission to seek judicial review and remitted the case to the UT for a full hearing.
Even if your employment contract says nothing about respecting the confidentiality of your employer’s trade secrets, you may still be under an implied legal duty to do so. Two salesman who were alleged to have exploited their travel agency employer’s client database found that out to their cost in a High Court case.
Following their departure from the agency to join a trade rival, the salesmen were alleged to have taken with them the names, contact details and much other information about the agency’s clients. Following their departure, they were also alleged to have accessed the agency’s database to obtain further information.
After the agency launched proceedings against them, the Court noted that the implied duty of good faith and fidelity that every employee owes to his or her employer generally comes to an end when the employment terminates. However, the obligation not to disclose or otherwise misuse trade secrets is capable of persisting even after an employee’s departure.
The Court had no doubt that the password-protected client information concerned was confidential to the agency and that the obligation to maintain its confidentiality did not cease on the salesmen leaving the agency’s employ. Although they were entitled to make use of information forming part of the experience and skills that they developed during the course of their employment, their duty of confidence extended to information which they had copied or deliberately memorised.
In making the agency’s confidential information available for exploitation by its rival, the Court found that they were in breach of the term of confidence implied into their contracts and also in breach of the distinct equitable obligation of confidence that they owed to their former employer. The Court’s decision opened the way for the agency to seek damages and injunctive relief against them.
It had not been established that the rival, which operated on a franchising model, had either employed the salesmen or engaged them as agents following their departure from the agency. However, it was also found liable for breaching its obligation of confidence in that it ought to have known that it was in receipt of information that the agency reasonably regarded as confidential.
A new Act giving the UK Government additional powers to tackle the coronavirus emergency has passed into law after being approved by the House of Lords. The Act took just three day to pass through Parliament.
Under the provisions of the Coronavirus Act 2020, which will last for two years, ministers, local authorities, police, health professionals and coroners will have new, wider-reaching powers.
The new legislation will also enable increased use of court case video hearings and provide a framework for a host of employment law changes, introduced in response to the virus pandemic.
Further legislation is currently being considered by the Prime Minister, to prevent companies and individuals from profiteering by hoarding supplies and then selling them at inflated prices.
Relationships are supposed to be between equals and, if you are being subjected to coercion or control by your partner, the criminal law will come to your aid. In a case on point, the Court of Appeal imposed a stiff prison sentence on an overbearing boyfriend who made his partner’s life a misery.
The man swiftly moved into the vulnerable woman’s home after they met on a dating website. He subsequently sought to take complete control of her life. Amongst other things, he obsessively accused her of seeing other men and told her what she should wear. He monitored her mobile phone and sought to restrict her contact with her friends and family, particularly her twin sister.
He subjected her to physical violence, on one occasion stabbing her with a penknife, and damaged her possessions when he was in a rage. When away from her, he telephoned her 60 to 70 times daily, demanding to know her movements. Although his behaviour was punctuated by apologies, it continued for four months unabated.
After his arrest and release on bail, subject to a condition that he make no attempt to contact her, he went straight to her address. He broke in, taking her car keys and driving away in her vehicle without permission. He then went to her sister’s home, where she was taking refuge, and damaged the front door.
Following his prosecution, he pleaded guilty to engaging in controlling or coercive behaviour in an intimate or family relationship, taking her car without authority and damaging property. He received a 24-month community sentence, with conditions attached requiring that he undergo rehabilitation and live in approved premises. He also received an indefinite restraining order, banning him from contacting the woman or her sister and from going to the woman’s address.
In upholding a challenge to the community sentence brought by the Solicitor General, the Court found that it was unduly lenient. His victim was humiliated and degraded by his behaviour and, before he met her, he already had a very bad record of violent and oppressive offending towards former partners. Finding that he clearly posed a high risk to intimate partners, the Court re-sentenced him to three years’ immediate imprisonment.
In a striking example of cross-border judicial cooperation, a family judge in London has given effect to an order of the President of the Irish High Court that a gravely anorexic Irish girl should receive urgent treatment at a psychiatric centre of excellence in England.
The girl’s eating disorder was accompanied by major depressive episodes. Although she did not require restraint, she had to be fed through a nasal tube. She attempted suicide by strangling herself with her clothes almost every day and had to spend much of her time in a padded space. She was unable to tolerate even a bed in her room, believing that she did not deserve one.
Following an application by the Health Service Executive of Ireland, the President made her a ward of court and found that, due to her disordered thinking, she lacked capacity to make important decisions for herself. Whilst Ireland has many excellent medical facilities, specialist units for the treatment of serious eating disorders are in short supply.
Her move from Dublin to a psychiatric unit in London had already been authorised by judges in Ireland and England, but her condition there had continued to worsen. In those circumstances, the President ordered her transfer to a psychiatric intensive care facility in the north east of England.
In recognising that order and directing its enforcement in England, the judge in London was entirely satisfied that the girl had been given a proper opportunity to be heard by the Irish High Court and that her human rights had been accorded full respect. The treatment that she required in England was extremely urgent and any curtailment of her liberty which that involved would be proportionate to the objective of promoting her health and protecting her life.
What may appear to be a dismissal on grounds of redundancy can, on analysis, turn out to be something quite different. In one case, an office assistant was awarded compensation after an Employment Tribunal (ET) found that the real and principal reason why she lost her job was her whistleblowing activities.
The woman worked hard and conscientiously for a car hire company. After tension grew between her and her boss, however, she lodged a grievance alleging that the company had been involved in criminal activities, including deception and perverting the course of justice. She said that she would not sit back and do nothing about the company’s alleged unprincipled actions and that it was her duty to expose them to the appropriate authorities. That grievance was never appropriately dealt with and she was subsequently dismissed on grounds of redundancy.
After she launched proceedings, the ET found that the company had been struggling for some time and that a genuine redundancy situation had arisen. However, it expressed concern as to the coincidence in timing between her grievance and the decision to make her redundant. On the balance of probabilities, her protected disclosures concerning the company’s alleged wrongdoing were the principal reason for her dismissal, which was thus automatically unfair.
The ET also found that the woman had in some respects been victimised and subjected to detriment for having lodged her grievance. Amongst other things, her boss had thereafter ignored her, save to issue instructions, and she had been excluded from a locked room in which the company’s records were kept.
Her claims of sex discrimination and harassment were, however, rejected and the ET found that she would probably have been dismissed within three months in any event. In seeking support for her allegations, she had covertly taken hundreds of photos of company documents and the ET found that, once discovered, that would probably have resulted in her fair dismissal for misconduct. Even had there been no such discovery, the employment relationship was under such strain that it was unlikely to have continued for long.
The woman’s total award of about £11,000 included sums to reflect unauthorised deductions from her wages, non-payment of accrued holiday pay and the company’s failure to provide her with written terms and conditions. Of that sum, more than £9,000 represented compensation for unfair dismissal, victimisation and detrimental treatment arising from her whistleblowing activities.
The desirability of preserving heritage assets carries great, often decisive, weight in the planning process. In a case on point, the High Court scotched plans to erect a 32-storey tower block within sight of Kew Gardens.
The owner of a strategic site on the other side of the Thames from Kew wished to build a 120-metre-high tower which would provide 327 residential units, 116 of them affordable, together with office and retail space and associated amenities. The local authority refused planning permission but, following a public inquiry, a government inspector recommended that consent be granted.
Despite fierce objections from the Royal Botanic Gardens, Kew, the inspector was enthusiastic about the proposed building’s design, describing it as a landmark and beacon which showed refreshing architectural verve. He said that it represented a quite brilliant response to the difficult problems posed by the site and found that the impact on Kew Palace, the gardens’ iconic Palm House and other heritage assets would be less than substantial.
The Secretary of State for Housing, Communities and Local Government, however, took a different view and dismissed the landowner’s appeal. He was less glowing about the building's design, saying that its mass and scale would dominate the surrounding area. He gave the benefits of the proposal in providing high-quality homes and office space only moderate weight, compared with the great weight he attached to the prevention of harm to heritage assets.
In dismissing the landowner’s challenge to that decision, the Court found that the Secretary of State took proper account of the fact that the site already had planning consent for a 13-storey office block which could still be implemented. That block, if built, would not be visible from the heritage assets.
Also rejected was the landowner’s plea that the Secretary of State was wrong to give only limited weight to an emerging London-wide planning policy which favoured residential and office developments in the area. In the exercise of his independent planning judgment, he was entitled to disagree with the inspector.
The intimate details of your private life are nobody’s business but your own and, if they have been exposed to public view by others, a specialist lawyer will see to it that you are properly compensated. In one case, a man whose ex-wife disclosed secrets of the marital bed without his consent won substantial damages.
During their brief marriage, the woman had obtained video footage and photographs of the man engaging in sexual activity. After their divorce, she was alleged to have disclosed them to third parties. He responded by launching proceedings against her, alleging breaches of confidence and contract, misuse of private information, and violations of the Data Protection Act 1998.
The woman formally gave her word to a judge that she would not, except in limited and specified circumstances, publish or disclose to others the material itself or any description of what it contained. She was, however, alleged to have broken that promise on a number of occasions. Stories concerning the man’s sex life had appeared in the press and one individual was said to have threatened him with blackmail, claiming to be in possession of compromising video footage.
An injunction was issued against the woman, holding her to her previous promise, and, after she failed to comply with case management directions, her defence was struck out. Judgment was entered against her and the High Court’s role was thus limited to assessing the amount of the man’s damages.
Ruling on the matter, the Court noted that both the man and the woman enjoyed high public profiles. It had not been established that threats and insults that the man had received from others were attributable to the woman’s disclosures. There was also insufficient evidence on which the Court could conclude that his psychological problems were caused by her misconduct. His claim that his life had been destroyed by the disclosures was a rhetorical exaggeration.
The Court, however, found that the woman had deliberately exposed to a substantial number of people moving and still images of the man’s intimate sexual activity, which were taken without his consent and disclosed in the knowledge that he positively objected. He found it demeaning and hurtful to have his sex life repeatedly exposed, sometimes to complete strangers, and had suffered a real loss of dignity and harm to his self-esteem. The woman’s behaviour had been persistent, high-handed, flagrant, arrogant and inexcusable.
The man had limited his damages claim to £25,000 and that was the sum the woman was ordered to pay him. She also faced having to pay his substantial legal costs. Given that she was bankrupt, however, payment of both those bills was deferred pending the outcome of the insolvency process.
Unexplained wealth orders (UWOs) impinge on the right of individuals to treat their finances as a private matter. However, as a High Court ruling made plain, they are justified as an essential investigatory tool in the fight to stop the property market being used to launder the profits of organised crime.
The case concerned a man who, either as an individual or through companies he controlled, was alleged to own a number of residential and commercial properties valued at close to £10 million. In seeking a UWO against him, the National Crime Agency (NCA) argued that his purported property development business was a front used to launder the profits generated by organised gangs engaged in serious crime.
In granting the UWO sought, the Court found that the requirements for making such an order, laid down by the Criminal Finances Act 2017, had been amply met. The NCA had reasonable grounds for suspecting that the properties could not have been purchased from the man’s known sources of lawfully obtained income and that he was in truth a professional enabler engaged in laundering gangsters’ profits from crimes including drug dealing, firearms offences and fraud.
The UWO required the man, who had never been convicted of any criminal offence, to formally state the nature and extent of his interest in the properties and to explain exactly how, and with what resources, they were obtained. Interim freezing orders were also issued against the man and six companies he controlled in order to prevent the sale or any other dealings in the properties pending completion of the NCA’s investigation.
The Advisory, Conciliation and Arbitration Service (Acas) has issued updated coronavirus guidance for employers and employees, in line with the latest government measures regarding the outbreak.
The guidance, which is being reviewed by Acas on a daily basis, includes new details on the use of holiday leave and Statutory Sick Pay (SSP), hygiene in the workplace and advice for employees when they need to self-isolate.
Acas urges employers to:
- keep everyone updated on actions being taken to reduce risks of exposure in the workplace;
- make sure everyone’s contact numbers and emergency contact details are up to date;
- consider extra precautions for staff who might be more vulnerable, for example those who are pregnant, aged 70 or over, or have a long-term health condition;
- make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace shows symptoms of the virus;
- make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly;
- provide hand sanitiser and tissues for staff, and encourage them to use them;
- consider if any travel or meetings are necessary and if meetings can be held remotely instead;
- keep up to date with the latest government coronavirus advice on GOV.UK.
Employers are also reminded that they ‘must not single anyone out unfairly’. They must not treat an employee differently because of their race or ethnicity, for example.
Acas is constantly monitoring government announcements and will update its page when legal changes occur.
Fair consideration of equal pay claims often requires disclosure of sensitive personal information concerning not only claimants but third parties with whom they seek to compare themselves. The Employment Appeal Tribunal (EAT) confronted just such a situation in a ruling which emphasised the fundamental importance of justice being done in public.
A man who was one of five people who held office as Her Majesty’s Inspectors of Constabulary lodged a pay inequality claim against the Home Secretary on the basis that a woman of black and minority ethnic heritage, who was appointed to the same position before him, received a higher salary than him. He claimed that the decision to pay her more than she had initially been offered was driven by a desire to avoid giving an appearance of discrimination. He also complained of alleged race and sex discrimination.
At a preliminary hearing, an Employment Tribunal (ET) granted the Home Secretary an order which, amongst other things, enabled evidence concerning the negotiation and finalisation of the woman’s terms of appointment and salary to be kept out of the public domain. The order required that parts of the hearing be held in private and that redactions be made from the ET’s published decision.
The order was made after the woman expressed concern that such evidence was strictly private and confidential and that its public disclosure would cause her significant detriment. The order was, however, revoked in its entirety by a differently constituted ET at the start of the full hearing of the man’s claim.
The ET remarked that excluding the relevant information from public view would render the central arguments in the case, and its published decision, unintelligible to anyone not intimately involved in the case. If the order remained in place, a gaping hole would be opened in the principle of open justice.
In dismissing the Home Office’s challenge to that ruling, the EAT noted that the information concerned was not a state secret and did not relate to sensitive policing, private discussions of public policy or any like matter. The woman was not a party to, or even a witness in, the case and, as a public office holder, her salary was already in the public domain. The ET had struck a fair balance between her privacy rights and the open justice principle.