Home-made wills may save you a few pounds in the short term, but dispensing with legal advice greatly increases the risk of painful disputes arising after you are gone. That was certainly so in the case of a desperately ill man who left the whole of his substantial estate to a friend, thus cutting out his brother and sister.
The man suffered from long-standing bipolar disorder and made his will after he was admitted to hospital suffering from the brain tumour that led to his death. The short and informal document, which was made without the benefit of legal advice, was witnessed by two of his friends and left his estate to another. Had he died without making a will, his estate would have passed to his siblings, who were estranged from him and had no contact with him until shortly before his death.
In challenging the validity of the will, the siblings denied that the signature it bore was their brother’s. They also asserted that he did not have the mental capacity to make a valid will and that he lacked knowledge and approval of its contents. They pointed out that he was suffering from cortical blindness due to his illness and questioned whether the will had been read to him. He was said to have repeatedly told his brother that he had made no will and had no intention of doing so.
Following a preliminary hearing, the High Court noted that the siblings had not formally alleged that the circumstances of the will’s execution were such as to arouse suspicion, nor was it claimed that the document was the product of a conspiracy or that the signature was a forgery.
The Court, however, ordered the witnesses to the will to disclose documents for use in the proceedings, including any written communications they had had with the man around the time of his death. In ruling that such disclosure was necessary to dispose fairly of the case, the Court noted, amongst other things, that documents bearing the man’s signature were likely to assist handwriting experts in assessing the authenticity of the signature on the will.
It is an enduring misconception that internet users can post whatever they like on their social media profiles so long as they are set to ‘private’. In a case on point, a man whose vile and grossly offensive comments on Instagram risked stirring up racial hatred received a deterrent prison sentence.
In a series of posts, the man published a photograph of himself bare-chested with his finger on the trigger of a long-barrelled musket-type gun. Accompanying the image were a number of foul-mouthed comments targeted largely at the Muslim community and which had extreme racist and white supremacist connotations.
Although the posts were made on his private profile, one of his Instagram followers passed them on to a woman who was disgusted by them and complained to the police. The man said that the gun was an ornament, and that he did not harbour racist views. He was, however, convicted of three counts of publishing material with intent to stir up racial hatred and received a four-year prison sentence.
In challenging the length of his sentence before the Court of Appeal, the man argued that he had made the posts whilst drunk and that he had only intended his followers to have access to them. The posts, which he accepted were disgusting, remained online only for a few hours and he deeply regretted his conduct.
Dismissing his appeal, however, the Court noted that, although the posts appeared on his private profile, there was nothing to prevent them being disseminated to those who were not his followers, as had in fact occurred. The comments were repulsive and their threatening nature, which put the woman in fear, was underlined by the gun-toting image. The Court acknowledged that the sentence was at the upper end of the scale. The number of people who had seen the posts, however, remained unknown and, given the prevalence of such misuse of social media, a deterrent sentence was amply justified.
Restrictions on the use to which land can be put – known as restrictive covenants – often lurk in title deeds and obtaining their release as a precursor to development can require payment of compensation. In a guideline ruling, the Upper Tribunal (UT) considered how such compensation should be calculated.
A householder had obtained planning consent to demolish the garage of his home and to construct an additional house in its place. The property’s title deeds, however, contained a number of restrictive covenants which forbade, amongst other things, erection of any additional buildings or structures without the written permission of the developer which had, during the 1980s, built and marketed the residential estate of which the property formed part.
The householder engaged in lengthy negotiations with the company which was the successor in title to the original developer and which retained ownership of certain estate roads and boundary areas. The company initially sought compensation of £34,632 for the release of the covenants but subsequently reduced its demand to £9,897.
After the householder’s offer of £4,000 was rejected by the company, he applied to the UT under Section 84(1) of the Law of Property Act 1925 for an order modifying the covenants to the extent necessary to enable the development to proceed. The sole issue for the UT to decide was how much in compensation the company should receive.
Ruling on the matter, the UT noted that the value of the company’s retained land would be unaffected by the proposed modifications. The compensation payable by the householder thus stood to be calculated by reference to any reduction in the price the original purchaser of the property would have paid for it by reason of the restrictive covenants.
The property was first sold in 1985 for £52,500 and the UT found that the original purchaser would have paid a maximum of 5 per cent, or £2,625, more for it had its title been free from relevant restrictive covenants. Using that figure as a starting point, the UT noted that taking into account inflation since 1985 would produce a sum in compensation close to, or in excess of, that sought by the company.
The UT, however, noted the lack of any concrete evidence as to the real monetary effect of the restrictive covenants in 1985. As a matter of judgment, it concluded that the householder’s long-standing offer represented fair and appropriate compensation. It directed that the restrictive covenants be modified in line with the householder’s request on his payment of £4,000 to the company.
Many companies are struggling to survive amidst the COVID-19 pandemic but, so far as judges are concerned, it is a case of all hands to the pump to save what can be saved. In one case, the High Court paved the way for the proposed rescue of an airport logistics group which employs 65,000 people worldwide.
The grounding of the airline industry arising from the pandemic plunged the group into a liquidity crunch of such severity that it was in imminent danger of running out of cash. In order to stave off insolvency, it planned to borrow 380 million euros in new money. That sum would enable the group to continue in business for six to nine months, during which it was hoped that broader financial restructuring would assure its future as a going concern.
Such new borrowing would prejudice the position of the group’s existing creditors in that any new lenders would be bound to require that their claims be given super senior ranking over the group’s other debts. In order for the group’s plan to proceed, therefore, the existing creditors would have to agree to the subordination of their claims to those of any new lenders.
The biggest tranche of the group’s existing debt was over 1 billion euros which had been raised under three loan facilities. Lenders under those facilities faced a stark choice between taking their chances in an insolvency – which it was estimated would result in them recovering less than 35 per cent of their claims – or agreeing to the subordination of their debts.
In those circumstances, the group, through its English subsidiary, applied to the Court under Section 896 of the Companies Act 2006 for an order convening a meeting of existing creditors at which a proposed scheme of arrangement would be put to a vote. The scheme, if approved, would open the way for the group to implement its new borrowing plans.
Granting the order sought, the Court noted that existing creditors had been given just over a week’s notice of the hearing. That was shorter than usual, but the matter was extremely urgent due to the group’s parlous financial position. The lenders concerned were sophisticated institutions which could be expected to act quickly.
The Court could detect no procedural or jurisdictional reason why the meeting should not take place and noted that it made sense for all concerned to consult together in their common interest. Securing the group’s future would require give and take on all sides. Any scheme agreed at the meeting would require the Court’s ultimate sanction before it could proceed. Given the social distancing required during lockdown, the Court agreed that the meeting should take place remotely, by webinar.
The requirement that workers must have two years of continuous employment before they can bring an unfair dismissal claim means that the precise date on which they started work can be of critical importance. Precisely that issue arose in the case of a safety supervisor who unofficially began work a week before his employment by a demolition company formally commenced.
The man lodged an unfair dismissal claim with an Employment Tribunal (ET) after losing his job. Following a preliminary hearing, however, his claim was rejected on the basis that he had not worked continuously for the company for two years. He had carried out significant work on one of the company’s sites in the week prior to the start date specified in his contract, but the ET nevertheless found that that date marked the commencement of his employment.
The ET noted that he was not on the company’s payroll during the relevant week, nor had he completed a work sheet. The company’s client was not charged for his services and his only remuneration was £100 which was paid to him by another worker out of his own pocket.
In challenging the ET's ruling before the Employment Appeal Tribunal (EAT), the man pointed out that, during the relevant week, he had on any view performed significant work of benefit to the company. He was supervised by the company’s site manager, wore the company’s uniform and received some payment, albeit cash in hand.
In rejecting his appeal, however, the EAT noted that the starting point was Section 211(1)(a) of the Employment Rights Act 1996, which states that, for the purposes of determining a period of continuous employment, the period begins with the day on which the employee starts work.
The ET was entitled to find on the evidence that his work during the relevant week was carried out on an unofficial basis. His status was that of a subcontractor, or an extra pair of hands. The payment he received was an informal token of thanks for the help he had given and he had not subsequently complained that he had been underpaid. The EAT concluded that the work he performed during the relevant week was not carried out under contract with the company and thus did not count for the purposes of determining his start date.
One of the most controversial aspects of divorce is the extent to which pre-existing family wealth should be taken into account when dividing assets. A case on point concerned a couple whose comfortable lifestyle was throughout their 22-year marriage underpinned by the wife’s family trusts.
During the marriage, the trusts had funded the school fees of their three children and provided by way of loans the capital required for various house moves. When they separated, they were living in a farmhouse valued at over £7 million. The wife did not work, instead devoting herself to childcare and home-making, and the husband’s income as an insurance broker would, in the absence of support from the trusts, have come nowhere near to supporting their standard of living.
Ruling on the financial aspects of the divorce, the High Court noted that the wife had items of personal jewellery worth £750,000 and kept a string of polo ponies. The trusts had been generous to her in the past and could be expected to continue to be so in the future. Although she, or she and the husband jointly, owed substantial sums to the trusts, the court was confident that her significant income from that source would continue and that she would be able to carry on living in the former matrimonial home.
Given the extent of the wife’s family wealth, which had not been built up during the course of the marriage, the husband sensibly accepted that his award should be assessed on a needs rather than an equal sharing basis. He said that his primary concern was that he should not feel disadvantaged in what he could offer the children by way of lifestyle when they stayed with him.
The Court found that the husband had overplayed the poor relation card and that his claim for a £5 million lump sum was excessive. He was ordered to transfer his share of the former matrimonial home to the wife and was awarded a total of £3.27 million, including his £320,000 pension, in order to meet his reasonable housing and income needs.
Taking into account the money owed to the trusts, the husband’s award represented over 70 per cent of the former couple’s total personal assets, including the wife’s jewellery, of £4.55 million. The court was, however, confident that, with the continued support of the trusts, the wife could afford to meet the award, which represented a fair balance following a long marriage.
Occupiers of land are generally aware of their duty to keep visitors to their properties reasonably safe – but it may surprise many of them that that obligation extends to trespassers. A High Court case in which this issue was in point concerned a teenager who was injured whilst clambering over an anti-intruder fence.
The 13-year-old boy and his friends had remained inside a public sports facility after it closed for the day. In order to make his exit, he attempted to climb over a fence which had been installed to deter vandals. The fence was more than six feet high and topped by vertical protruding wires. Once at the top of the fence, he lost his footing. His left arm caught on one of the wires and he suffered a deep wound.
In seeking compensation from the local authority which owned the facility, the boy argued that the fence had potential footholds which served to encourage climbers and that the vertical wires posed an unnecessary hazard. The facility’s staff were said to have been aware that people like him often stayed inside it after it closed and that climbing the fence to get out was commonplace.
The boy admitted that he was trespassing when the accident occurred. However, the council, as occupier of the facility, was nevertheless obliged to take reasonable care to ensure his safety. It was argued that the council was, or should have been, aware that the fence presented a danger against which it could reasonably be expected to offer some protection.
Ruling on the matter, the Court noted that the fence complied with British standards and was of a type commonly erected to keep out intruders. It had been put up by reputable contractors and the vertical wires, which were not sharp, were an appropriate deterrent to those who might wish to scale it.
A moment’s perusal of the fence would have made plain, even to a 13-year-old boy, that it was not intended to be climbed. There was nothing exceptional about the fence’s perfectly legal design and it had not been shown to be dangerous. Rejecting the boy’s claim, the Court concluded that the accident arose from his own actions, rather than anything that the council had done or omitted to do.
Every employer presumably knows that sex and race discrimination are unlawful, but fewer may be aware that marriage and civil partnership are also protected characteristics. An unusual case on point concerned a vicar who claimed that his dismissal was an act of discrimination arising from the acrimonious breakdown of his marriage.
The ethos of the vicar’s church was conservative and evangelical and tensions arose after the breakdown of his marriage was played out in a very public way. There were various other concerns about his conduct and, after attempts at mediation failed, the church’s senior leadership team resigned en masse. After much soul-searching, the trustees of the charity that ran the church decided to dismiss him.
The vicar subsequently launched Employment Tribunal (ET) proceedings, claiming that his dismissal was unfair and amounted to marriage discrimination. Section 8 of the Equality Act 2010 renders it unlawful to treat those who are married or in a civil partnership less favourably than those who are single.
In dismissing his claim, however, the ET found that the reason for his dismissal was not in any way because of his marriage, his separation or his potentially imminent divorce. The decision was entirely because of the irretrievable breakdown in his relationship with the trustees and their loss of trust and confidence in him.
Rejecting his challenge to that outcome, the Employment Appeal Tribunal noted that it had not been established either that his dismissal was significantly influenced by a belief that a minister cannot continue to serve if his marriage breaks down or that he would have kept his job had he been single.
Although his separation had contributed to the trustees’ loss of trust and confidence in him, it was part of the background or context of the matter, rather than part of the reason for dismissal. The ET was therefore entitled to find on the evidence that this was not a case of marriage discrimination.
Is a fine imposed on a company by a criminal court a provable debt in the company’s winding up or administration? In an important ruling for insolvency professionals, the High Court has provided an authoritative answer to that novel question.
Prior to entering voluntary liquidation, a recycling company pleaded guilty to seven environmental offences in connection with the storage of controlled waste. Sentencing had been deferred pending the outcome of proceedings against its directors, but the company was likely to receive a substantial fine.
In those circumstances, the company’s liquidators sought judicial guidance as to whether such a fine would be a provable debt in the company’s winding up. There was, surprisingly, no previous authority in respect of that question and the Court acknowledged that its ruling on the point had potentially wide implications.
The Court noted that it is well established that a fine imposed for an offence is not provable in a debtor’s bankruptcy. Both the Insolvency Act 1986 and the Insolvency Rules were, however, silent as to the position in relation to the winding up of a company. All the offences were committed before the company entered liquidation and there was no suggestion of any wrongdoing on the liquidators’ part.
Ruling on the issue, the Court found that a fine, even if imposed after the onset of insolvent liquidation, is a debt provable in that liquidation where it was triggered by offences committed prior to the entry into liquidation. Any fine imposed on the company would be a contingent, or future, debt or liability provable in its administration or winding up.
The liquidators estimated that realisation of the company’s assets would yield about £102,000, as compared to the £438,000 it owed to floating charge creditors. Any fine imposed on the company would be an unsecured debt and, given the extent of that deficiency, it would in effect be irrecoverable. Such a fine would therefore not impact on the company’s financial position in the winding up.
In those circumstances, the Court granted the liquidators a direction under Section 112 of the Act which opened the way for them to distribute to the floating charge creditors sums raised from the sale of the company’s assets.
What is an employee? What is a worker? The answer to those perennially tricky questions has been illuminated by the Employment Appeal Tribunal’s ruling that elite cyclist Jess Varnish fell into neither category when she parted company with the British Cycling Federation (BCF).
Ms Varnish was still at school when the BCF spotted her talent and selected her for its Olympic Podium Programme. After her relationship with the BCF was terminated for performance-related reasons in 2016, she launched Employment Tribunal (ET) proceedings, alleging unfair dismissal and discrimination. The ET, however, ruled following a preliminary hearing that she was neither employed by the BCF nor a worker within the meaning of the Employment Rights Act 1996.
In its decision, the ET noted that she had entered into a written agreement with the BCF – a not-for-profit body which promotes and controls cycling in the UK – by which she undertook, amongst other things, to train hard for the common purpose of winning medals for the British cycling team. The BCF reciprocated by providing her with a wide range of services and benefits that were designed to promote her success and had an estimated value of £600,000 to £700,000 over a four-year period.
Submitting to a high degree of control by the BCF, she had amongst other things agreed to train with the British squad when required, to attend training camps, to wear team clothing and to use her best efforts to maintain the highest levels of fitness. She committed herself to conducting herself appropriately at all times and permitted the BCF to use her image in promoting the Podium Programme.
The ET, however, noted that, although her membership of the Podium Programme enabled her to apply for a National Lottery-funded grant, she did not receive any money from the BCF. She could choose her own coach if she wished and the services and benefits with which the BCF provided her could not be viewed as remuneration for work that she personally performed. It was the BCF who provided her with services, rather than the other way around.
In rejecting her challenge to the ET’s ruling, the Employment Appeal Tribunal noted that not all work is of a kind that gives rise to an employment relationship. It did not doubt that Ms Varnish had trained very hard to become an elite athlete and that she could not have substituted someone else to perform her role. It concluded, however, that she did not personally perform work or services for the BCF.
The dominant purpose of the agreement was to achieve the mutual goal of winning medals. The benefits and services she received from the BCF were provided in order to enable her to train and compete at the highest levels; they were not her remuneration for doing so. Her agreement with the BCF lacked the elements of mutuality of obligation and personal performance that are the hallmarks of an employment relationship. She also did not enjoy the status of a worker in that the agreement could not be viewed as a contract for services.
A good divorce lawyer, whilst ever ready to fight your corner, will always urge you in the direction of compromise. The reason for that was made plain by a case in which a wealthy couple’s self-defeating animosity resulted in them spending most of their liquid assets on litigation.
During their 22-year marriage, which yielded three children, the couple lived comfortably, enjoying an annual spend of more than £100,000. Their marriage, however, ended in ruinous recrimination and a total of 13 court hearings since then had resulted in legal bills of £594,000.
Although they had pensions and other illiquid assets worth over £1.2 million, their sole remaining liquid asset of any substance was the £630,000 proceeds of sale of the former matrimonial home. That sum only exceeded their debts, largely arising from the litigation, by about £10,000. Both of them were facing an uncertain future and at risk of being unable to meet their basic housing needs.
Ruling on the matter, the High Court noted that a clean break was essential to bring to an end the scarcely credible cycle of disproportionate and ill-judged litigation. The wife, who was the children’s primary carer, was awarded liquid and illiquid capital totalling £716,848 and the husband £514,847.
The net effect was that each of them would have liquid capital of only about £5,000. The division would, however, enable the husband to buy a mortgaged flat worth £250,000. With assistance from her family, who had been generous to her in the past, the wife would be able to afford a property worth £375,000.
Long leaseholders often describe themselves as ‘owners’ and take the view that they can do pretty much what they like with their properties. An unusual case concerning a flat which was used as a brothel, however, showed that, no matter how long a tenancy may be, it is a very different legal animal to a freehold.
The urban flat, one of five in a residential block, was held by a woman under a 999-year lease. After she sublet the property, other residents complained of their peace being disturbed by numerous late-night callers seeking access to her flat. At least one resident was said to have received a sexual proposition from a visitor. The lease contained a restrictive covenant in common form, which forbade the woman from permitting or suffering its use for any illegal or immoral act or for any purpose which might cause nuisance, annoyance or damage to other residents.
With a view to forfeiting her lease, her landlord successfully applied to the First-tier Tribunal (FTT) for a declaration that she had breached the covenant. There was no suggestion that she had herself used the flat as a brothel. The FTT, however, found that she had suffered it to be used for that purpose in that she had refused to acknowledge what was going on or to take steps to prevent it.
In challenging that outcome before the Upper Tribunal (UT), the woman argued that there was no compelling evidence that the flat had been used for prostitution. Even were that the case, she had not consented to or permitted such use. She pointed out that she was gravely ill with cancer during the relevant period and had appointed what appeared to be a reputable agent to manage the property.
The UT ruled that the FTT was entitled to find on the basis of considerable circumstantial evidence that the flat had been used as a brothel. It had, however, apparently failed to take the evidence concerning the woman’s health problems seriously. It had also not made any explicit findings as to the extent, if any, of her knowledge of and responsibility for the illicit use to which the flat was put. The matter was sent back to a freshly constituted FTT for rehearing.
The process of selecting staff for redundancy is fraught with legal pitfalls and seeking professional advice at the outset can in the long run save you from serious financial and reputational damage. In a case on point, a local authority reaped a whirlwind after mismanaging employment aspects of a school closure.
The case concerned two teachers who worked at a school which was closed as part of wholesale reorganisation of education in the council’s area. They were warned in advance that their employment would be terminated and that they would have to go through a full application and interview process if they wished to work at a new school which was to be opened on the same site.
They were dismissed on grounds of redundancy after unsuccessfully applying for positions at the new school but subsequently launched Employment Tribunal (ET) proceedings. In upholding their unfair dismissal claims, the ET noted that they had been denied any opportunity to appeal against their dismissal. The council argued without success that their redundancy was inevitable, given the closure of the old school, and that affording them appeals would have made no difference.
In rejecting the council’s challenge to that outcome, the Employment Appeal Tribunal noted that the teachers had both a statutory and contractual right to appeal before they were made redundant. No attempt had been made to consult them about the way the redundancy exercise would be carried out. Decisions which had already been made were merely communicated to them.
Given that the vast majority of staff at the old school had been taken on by the new school, it was emphatically wrong to say that denying them a right of appeal had caused the teachers no disadvantage. Their dismissal was not inevitable and the process followed was fundamentally and profoundly unfair.
There was no evidence that the council could not have redeployed the teachers to one of the 100 or so other schools within its educational estate and its effective requirement that they apply for their own jobs fell outside the band of responses open to a reasonable employer. If not agreed, the amount of the teachers’ compensation would be assessed at a further hearing.
Are ‘deductions’ from workers’ pay in respect of living accommodation and training costs to be viewed as ‘reductions’ capable of bringing their remuneration below the National Minimum Wage (NMW)? The Employment Appeal Tribunal (EAT) addressed that burning issue in an important test case.
The case concerned a telemarketing company which required new employees to undergo a minimum of three days’ paid induction training for their roles. If they left the company within 12 months, deductions were made from their salaries in respect of the costs of such training.
A number of workers were also provided with living accommodation by a property company (the landlord) which was wholly owned by the employer’s chief executive and sole proprietor. Some of them elected to pay their rent to the landlord via deductions from the wages payable to them by the employer.
HM Revenue and Customs (HMRC) took the view that both types of deduction were ‘reductions’ for the purposes of the National Minimum Wage Regulations 2015 and had the effect of reducing the pay of 359 workers to below the NMW. Notices of underpayment were raised against the company, totalling £53,000, and penalties of £28,000 were imposed.
After the company challenged that decision, an Employment Tribunal (ET) found that the deductions in respect of accommodation costs were not ‘reductions’ from workers’ pay. It reached the opposite conclusion, however, in respect of the training costs. HMRC and the employer respectively appealed and cross-appealed to the EAT against those parts of the ET’s decision not in their favour.
Rejecting HMRC’s appeal in respect of accommodation costs, the EAT found that the accommodation was not provided by the ‘employer’, within the meaning of Regulation 14 of the Regulations. The deductions in that respect thus did not fall to be treated as reducing the amount of pay for NMW purposes.
The EAT noted that the ET focused on the narrow issue of how the word ‘employer’ should be defined. Had it considered the broader question of whether the employer was responsible for the provision of accommodation, it may well have reached a different conclusion. That, however, was not the way in which the case had been argued before the ET.
Rejecting the employer’s cross-appeal in respect of training costs, the EAT observed that training was a mandatory requirement, imposed by the employer upon all new employees. It was no different from an obligation to wear a uniform or to have tools required for a job. The ET did not err in regarding the training costs as expenditure in connection with employment even though the deductions were contingent on the event of a worker leaving the company within 12 months.
If you have been disinherited by a loved one whose mind has become poisoned against you, you should consult a solicitor straight away. In a case on point, the High Court came to the aid of a woman whose mother harboured false and delusional beliefs that she was a shopaholic who had stolen from her.
In two wills made before her death, aged 76, the mother bequeathed almost all her estate, which was worth about £350,000, to her son. Her daughter was left only a few personal possessions. The daughter later launched proceedings, seeking declarations that neither will was valid.
In ruling on the matter, the Court found that the mother had been gravely affected by a complex grief reaction and persistent depression following another of her children’s early death from cancer. She was prey to unfounded and irrational convictions that her daughter was, amongst other things, a spendthrift and a thief. Due to her insane delusions, the mother’s mind was poisoned against her daughter.
Granting the declarations sought, the Court found that the daughter bore no blame for her estrangement from her mother, who lacked the mental capacity required to make either will. The decision meant that the mother died intestate and her estate would be divided equally between her next of kin.
Football seasons worldwide have been disrupted by the COVID-19 pandemic and some clubs have inevitably been left feeling hard done by. In a unique High Court case, the response to the crisis of the Football Association of Wales (FA Wales) came under intense judicial scrutiny.
FA Wales suspended the football season in its territory on 13 March 2020 and, on 19 May, decided that it was not feasible to complete the season in accordance with the process of sporting competition that would normally apply or in any alternative format.
In order to produce a list of final standings in the Cymru Premier League (CPL), it adopted an unweighted points per match solution which involved taking the number of points accumulated by each club in the league and dividing those points by the number of matches played. Rankings were thereby determined by calculating the average number of points won by each club per game.
The New Saints FC Limited – the club which, by that calculation, came second in the league – launched proceedings. It argued that the decision not to restart the season in an alternative format, possibly in the form of play-offs between the two top teams, was irrational and amounted to a breach of contract. The issue was of particular importance because only the club that came top in the CPL could be nominated to compete in the lucrative UEFA Champions League.
In dismissing the club’s claim, however, the Court rejected arguments that FA Wales had exceeded its lawful powers in failing to follow guidelines circulated by UEFA in response to the pandemic. Those guidelines, which recognised the health of players as the primary concern, were not rules and left a wide margin of discretion to national bodies. If anything, they confirmed that the course adopted by FA Wales was one that UEFA regarded as legally permissible.
It could not be said that the directors of FA Wales had failed to consider alternative formats or that they had simply rubber-stamped a previous decision of the National League Board. The Court noted that different clubs had quite different interests and that it fell to FA Wales to hold the ring. Arguments that its decision-making was infected by procedural unfairness or breaches of the rules of natural justice were not seriously arguable.
The various play-off and other alternative formats suggested by New Saints were on the face of it perfectly reasonable. However, in terms of the sporting process, they were no better or worse than the course decided upon by FA Wales. There was nothing perverse in the method of calculating CPL rankings adopted by FA Wales and it was no part of the Court’s role to substitute its own view on the merits.
The Court acknowledged the disappointment that all football fans in Wales were bound to feel in seeing the 2019/20 CPL season come to such an unsatisfactory end. It hoped, however, that its judgment would at least provide some explanation as to why the conclusion of the season in this way was justified given the extraordinary events brought about by the pandemic.
Companies within the same group frequently have almost identical names, but that does not detract from their independent legal personalities. As a High Court case concerning an offshore helicopter crash showed, that fundamental principle constitutes a trap into which the unwary persistently fall.
The helicopter’s passengers and crew lost their lives after it fell into the sea whilst on its way back to the Brazilian mainland from an offshore oil platform. An investigation by the Brazilian authorities reported manufacturing defects in the helicopter which had, amongst other things, led to the catastrophic failure of its tail rotor blades.
Following publication of the investigation report almost six years after the crash, the Brazilian company that leased and operated the helicopter launched proceedings in London against an English helicopter manufacturer with a view to recovering its losses, including substantial compensation that it had paid to victims’ families and the $8-11 million value of the helicopter.
However, in summarily dismissing the entirety of the claim against the English company, the Court noted that the helicopter had been built by a similarly named Italian company which was part of the same group. There was no evidence of any substance that the English company had performed any role in designing, manufacturing, marketing or producing the helicopter.
The Brazilian company had also sued the Italian company and the group’s Italian parent. Those claims were, however, anchored to England by the inclusion of the English company as a defendant. There being no viable case against the English company, the Court declined jurisdiction to consider the claims against the Italian companies.
The integrity of the housing market depends on honest dealing and lenders are very often not the only victims of mortgage fraud. That was certainly so in the case of an innocent woman who, due to her husband’s dishonesty, faced losing her home of almost 30 years.
The woman's home was a former council house into which she moved in 1993. She would never have been able to pay the £167,000 required to purchase the property under the ‘right to buy’ scheme. Her husband, however, fraudulently arranged its transfer to her by the council in 2002. Within days, he transferred it again to a property company which raised a £250,000 mortgage on the property.
The woman’s signature on both transfers was forged and she was entirely unaware of any of those arrangements. Her husband was subsequently convicted of fraud in relation to the forgery of the transfers. After the property company was struck off the register and dissolved, the house reverted to the Crown. However, she eventually succeeded in having the property vested in her name.
The end result of those events was that the house was encumbered by a mortgage which, with the addition of unpaid interest and legal costs, had ballooned to over £650,000. Fearing that she would lose the roof over her head, the woman sought to rectify the land register so as to remove the mortgage. Her application was, however, rejected by a judge.
In dismissing the woman’s challenge to that outcome, the Court of Appeal noted the lender’s argument that it was unquestionably the victim of a fraud and that it would be unjust to deprive it of the benefit of the mortgage. The house was currently valued at about £1 million and, even after the mortgage was taken into account, the woman’s equity in the property was worth about £350,000.
If the mortgage were removed, the woman would receive a windfall in that she would obtain the unencumbered freehold of a house she could never have afforded to buy. That would put her in a much better position than she ever would have been in if the fraud had not taken place. The Court concluded that, in the exceptional circumstances of the case, the register should not be rectified.
It is not only in the realms of fiction that lovers choose to marry in secret, away from the gaze of their disapproving families. A highly unusual High Court case, however, showed the legal difficulties that can arise from such arrangements.
The case concerned a former couple who, without telling their families, went through a ceremony of marriage in Madrid in 1993. About a year later, after their families’ attitude to their relationship had mellowed, they went through a second marriage ceremony in London.
The marriage did not prosper and, after the man petitioned for divorce, decrees nisi and absolute were pronounced in 1997. The couple settled their financial differences shortly afterwards. Crucially, however, the petition and the decrees only referred to the English marriage, making no mention of the earlier Spanish marriage.
More than 20 years after those events, the woman asserted that she and the man remained husband and wife. The Spanish marriage, she argued, remained extant and could only be brought to an end by divorce proceedings in Spain. She did, however, indicate her willingness to consent to a divorce, provided that a very substantial financial settlement was made in her favour.
After the man launched proceedings, the Court found that the Spanish marriage was valid. Whilst the subsequent English marriage may have been important in emotional and social terms in bringing both sides of the two families together, it had no impact on the couple’s legal status. By then, they were already married.
Ruling on the matter, the Court found that the error on the face of the decrees, in giving the wrong date of the couple’s effective marriage, was one of process rather than substance. The decree absolute had the effect of bringing to an end their true legal marriage – the Spanish marriage – and they were thus validly divorced in 1997. In order to set the record straight, the Court directed that both decrees be rectified so as to state that it was the Spanish marriage that was being dissolved.
Many employers quite understandably treat certain forms of misconduct particularly seriously, but the adoption of so-called ‘zero-tolerance’ policies is replete with legal pitfalls. That was certainly so in the case of the Home Office’s tough stance on employee misuse of its IT systems.
The case concerned a qualified barrister who was an exceptionally effective and committed employee in the Home Office’s visa and immigration section. Due to difficulties in her personal life and concerns about her health, she suffered from depression which was accepted to amount to a disability.
Following an investigation, it was discovered that she had searched the Home Office’s database on several occasions for information concerning her ex-partner and members of his family. The Home Office had recently introduced a zero-tolerance policy in respect of data security breaches and, following a disciplinary process, she was sacked for gross misconduct.
After she launched proceedings, an Employment Tribunal (ET) noted that her line manager had recommended that she receive a warning. Given her unblemished disciplinary record and substantial mitigation, the decision to dismiss her was at the very extreme limit of what a reasonable employer would do. Her unfair dismissal and disability discrimination complaints were nevertheless rejected.
In upholding her challenge to that outcome, the Employment Appeal Tribunal noted that the zero-tolerance policy stated that misuse of Home Office IT systems would be categorised as gross misconduct. However, it permitted issues relating to disability, personal trauma, and other mitigating factors to be taken into account if they had a ‘material impact’ on an employee’s misbehaviour.
The Home Office’s internal decision-makers had misinterpreted that policy in finding that the woman’s personal and medical difficulties were not directly causative of her misconduct. That was a more stringent test than the policy required. There was a clear distinction between a test of direct cause and effect and the policy test of material impact, but the ET had treated them as the same.
The ET’s use of unclear and elliptical language rendered elements of its reasoning in respect of disability discrimination opaque. It had also erred in its approach to medical evidence and to the question of whether the zero-tolerance policy had been adequately communicated to the Home Office’s workforce. The woman’s case was sent back to a freshly constituted ET for rehearing.