Speedy and cost-effective dispute resolution is the primary aspiration of the contract adjudication regime – but to what extent can that be fairly achieved during the COVID-19 pandemic? The High Court confronted that issue in a guideline case.
A woman asserted that she had been overcharged by a building company for works carried out on her home and that some of the works were defective. She valued her claim at almost £60,000 and exercised her contractual right to refer the matter to an adjudicator. She did so on 23 March 2020, the very day that the COVID-19 lockdown commenced. The company, however, disputed her claim and sought an injunction to prevent the proposed adjudication from taking place.
The company argued that proceeding with the adjudication during the pandemic would inevitably result in a breach of natural justice and that it should be deferred for at least three months or until after lockdown was lifted. The company had ceased trading and its solicitor, directors and essential witnesses were all living in self-isolation. The difficulty the company faced in putting together its case meant that the timetable set by the adjudicator could not sensibly be met.
In refusing the company’s application, however, the Court noted that no thought had apparently been given to potential technological solutions to the company’s difficulty. Conferences between witnesses and legal advisers could be held remotely and documents scanned and transmitted between those in isolation.
The company submitted that it would be unable to appoint a surveyor to accompany the adjudicator on a site visit. However, in describing that objection as misconceived, the Court noted that the adjudicator could quite properly conduct the visit on his own. The visit could in any event be recorded or steps could be taken to enable the company’s representatives to attend remotely.
There was no suggestion that the adjudicator lacked jurisdiction to consider the matter and, in recognition of the company’s difficulty, he had agreed to defer his decision for two weeks. It was not seriously arguable that the adjudicator would be unable to deal with the matter fairly and there were no exceptional circumstances which would justify granting the injunction sought.
Almost any inquisitive person would love to know more about the inner workings of government. However, as a highly unusual tribunal decision showed, unrestrained freedom of information can have a chilling impact on effective policy-making.
The day after the Department for Culture, Media and Sport changed its name to the Department for Digital, Culture, Media and Sport (DCMS), freedom of information requests were submitted to the DCMS and the Cabinet Office. Disclosure was sought of, amongst other things, all communications concerning the name change between civil servants, the Cabinet Office and the Prime Minister.
After both requests were turned down, the requester complained to the Information Commissioner, who found that the public interest favoured disclosure. An appeal by the Cabinet Office and the DCMS to the First-tier Tribunal (FTT) was partially successful, but disclosure of five emails and a note was directed.
The government’s challenge to that decision before the Upper Tribunal (UT) focused on the note alone. The disclosure issue was considered of such importance that the former Cabinet Secretary, Lord Butler, and the Permanent Secretary in the DCMS, Dame Susan Owen, gave evidence in support of the appeal.
Lord Butler said that there was a particularly strong public interest in maintaining the confidentiality of the Cabinet Secretary’s communications given his central role in policy-making. Dame Susan said that disclosure of the note would cause particular harm and would discourage blue-sky thinking and frank discussion. It would be contrary to good government for ministers and civil servants to be inhibited by the knowledge that their communications might be publicly disclosed.
In upholding the appeal, the UT found that the FTT had given inadequate reasons for its decision. Its reasoning did not demonstrate any recognition of the harm that it was said that disclosure of the note would cause. It was also unclear why the FTT had concluded that any such harm was outweighed by the modest public interest in disclosure. The matter was sent back to a differently constituted FTT for fresh consideration of whether the note should be disclosed.
One might think that wealthy couples with more than enough money to meet their reasonable needs would find it easier to fairly divide their assets on divorce – but that is far from always so. A case on point concerned a former couple who spent more than £10 million on litigation akin to gladiatorial combat.
The husband, aged 41, and the wife, aged 38, came from families which were each said to be worth about £2 billion. During their 15-year marriage, they lived to an extraordinarily high standard, travelling the world by private jet and enjoying splendid homes in London, New York, on the French Riviera and elsewhere. Their annual outgoings were probably well in excess of £5 million.
The bitterness that followed their separation was fed by the husband’s discovery that the wife had had an affair during the marriage and that he was not the natural father of her nine-year-old son. That revelation, which was confirmed by DNA testing, had a devastating emotional impact upon him. He had spent about £6.5 million on divorce and other litigation and the wife’s legal bills came to around another £3.8 million. Her father had also spent over £1 million on engaging a forensic investigator.
In ruling on the financial consequences of the divorce, the High Court noted the difficulty of separating wealth that had been built up during the marriage from the husband’s pre-existing assets and other resources that derived from his family. Performance of that task had been hindered by the husband’s seriously deficient approach to disclosure of his assets.
His failures in that respect were to some extent balanced out by the wife’s egregious conduct in allowing him to bring up her son in the mistaken belief that he was the boy’s father. That conduct was, however, not so serious as to disentitle her from having her award assessed in accordance with the equal sharing principle, rather than on the basis of her reasonable needs.
Having estimated the value of the marital assets at £128 million, the Court ruled that the wife should receive cash and assets worth £64 million. That included the former marital home, which was worth about £15 million. As the boy’s psychological father, the husband was also required to pay his school fees and £60,000 a year towards his maintenance. It was left to the wife to obtain from his natural father any further maintenance sums that her son might require.
The Court fully understood the wound that had been dealt to the husband’s pride and the hurt that both he and the wife felt at the breakdown of their marriage. However, the wife’s award was, in the scheme of things, a small part of the resources available to the husband and the Court expressed the hope that its ruling would mark an end to the destructive litigation.
Tenants should take professional advice before renting out their homes to short-term paying guests via Airbnb, Booking.com or other internet booking sites. In a case on point, a couple who failed to take that sensible step placed themselves in jeopardy by breaching the terms of their lease.
The couple held their flat under a 125-year lease. In common with a great many such properties, the lease contained a covenant that forbade the flat's use for any purpose other than as a private dwelling house for occupation by one family at any one time. After they advertised the property for short-term lets on internet booking sites, their landlord launched proceedings.
In rejecting the landlord’s complaint, the First-tier Tribunal (FTT) noted that there had been no complaints of nuisance or antisocial behaviour by the couple’s guests. After relocating for work reasons, the couple had rented out the property as a temporary expedient prior to its planned sale. The FTT also noted that their lease permitted them to grant assured shorthold subtenancies of the flat, for up to six months, without obtaining the landlord’s consent.
In upholding the landlord’s appeal against that ruling, however, the Upper Tribunal (UT) noted that the use of a residential property for short-term occupation by a succession of paying guests has always been treated as a breach of a covenant requiring its use only as a private residence or dwelling house. The couple’s entitlement to enter into subtenancies of short duration did not imply that the property could be used by a succession of unconnected strangers who generally only stayed for a weekend.
On a true interpretation of the covenant, short-term letting of the flat to persons who did not use it as their only or principal home would amount to a breach of the lease. Given the requirement that the flat be occupied by one family, the couple were also arguably prohibited from taking in a lodger. The landlord was granted a formal declaration that the couple had breached the covenant.
For many parents, the objective of a will is to ensure even-handed treatment of loved ones, particularly children. However, as a High Court case strikingly showed, some may be in greater need than others and that too should be taken into account.
The case concerned a married father of two who died in a domestic house fire. By his will, he left his entire estate – which was valued at £554,000 before deduction of Inheritance Tax – to his widow. She moved into a private care home after his death at a cost of more than £50,000 a year. Aged in her 80s, she had multiple health difficulties and was not capable of living independently.
The couple’s son, a successful businessman, was comfortably off. The same could not, however, be said for their daughter, who had a history of severe and debilitating mental illness and had, to their intense grief, been largely estranged from her parents for at least a decade. She had two primary-school-aged children and lived in a rented flat. She was dependent on benefits and her finances were precarious.
The daughter issued proceedings under the Inheritance (Provision for Family and Dependants) Act 1975, seeking reasonable provision from her father’s estate. Amongst other things, she sought a substantial capital sum, in order to provide her with a regular income, and sufficient funds to enable her to purchase her own flat.
Ruling on the matter, the Court found that the daughter was in a position of real need and that her father’s will did not provide for her reasonably. However, given the fairly modest size of the estate, meeting all her wishes was simply unaffordable. Priority had to be given to the needs of the widow, who, given the scale of her care home fees, had her own money worries.
Striking a balance, the Court awarded the daughter £138,918 from the estate. That sum, whilst insufficient to allow her to buy her own home, would enable her to pay for the psychiatric therapy that she urgently required, amongst other things. It would also provide her with an income for about three years whilst that therapy continued.
So-called team moves, in which key personnel simultaneously resign and move in concert to a competitor, can have a devastating impact on any business. However, as a High Court case underlined, those on the receiving end of such a manoeuvre do not have to take it lying down and should take legal advice without delay.
The case concerned the departure of 26 of a financial services group’s employees who worked in various locations around the world. Despite time zone differences, all of them resigned on the same day, at the same hour, and in almost identical terms. Each of them took up employment with the same competitor.
The group took action against three of its former employees, together with the competitor’s English, US and Hong Kong branches. The competitor was alleged to have directed and coordinated the spate of resignations, thus inducing the 26 to breach their contracts. It was also said to have directed them to refuse to honour bonus repayment obligations which were triggered by their resignations and subsequent employment by the competitor.
At a preliminary hearing, the competitor argued, amongst other things, that the case was more closely connected to the US than to England and that the Court should decline jurisdiction to consider the matter. The Court, however, found that England was the proper place for the case to be heard and that the interests of justice would be best served by a trial taking place without further delay.
It is a sad fact that some children suffer violence and injury at the hands of their own parents. However, as was shown by the case of a little boy who was beaten almost to death by his father, specialist personal injury lawyers will bend every sinew to ensure that they are properly compensated.
Within a short time after his birth, the boy was taken to hospital. X-rays showed healing rib fractures which were non-accidental. Medical staff failed to identify them, however, with the result that there was no investigation and he was not referred to social services. He was discharged home where, shortly afterwards, he was savagely assaulted by his father.
The father later received a 15-year extended prison sentence after he was found guilty of inflicting grievous bodily harm with intent. The boy’s mother, who was convicted of child neglect, received a suspended sentence. She was, however, later permitted full contact with him on the basis that she had herself been subjected to violence by the father, of whom she was in fear, and that her neglect of her son arose from his malign influence.
Together with severe physical injuries, the boy sustained devastating brain damage at his father’s hands. Suffering from cerebral palsy, epilepsy and global intellectual impairment, he had no independent mobility and was almost blind. At great sacrifice to herself, his grandmother, a retired nurse, brought him and his mother into her home and became his primary carer.
After a claim was brought on the boy’s behalf, the NHS trust that ran the hospital admitted liability in full for his injuries because of its breach of duty in failing to detect the non-accidental rib fractures. The amount of his compensation had yet to be assessed but was likely to run well into seven figures. The grandmother’s home was entirely inadequate to meet his needs and, following negotiations, the trust agreed to make a £600,000 interim payment of damages so that a suitable property could be purchased pending a final resolution of the boy’s case.
In approving that payment, the High Court observed that a move to a suitable new home would be the key to ensuring that the boy had his own space and that he received all the equipment and professional care he needed. The Court noted that steps would be taken to ensure that neither the father nor the mother would benefit from the interim payment or any future award of compensation.
Those who work abroad can only bring Employment Tribunal (ET) proceedings if their employment is much more strongly connected with Great Britain and with British employment law than it is with any other system of law. That general rule came under close analysis in a case concerning a former Vice Consul in the British embassy in Cairo.
The woman lodged complaints of unfair dismissal, race discrimination, victimisation and detrimental treatment arising from whistleblowing with an ET in London. Her case was, however, dismissed after the Foreign and Commonwealth Office and the embassy successfully argued that the matter fell outside the ET’s territorial jurisdiction.
In challenging that outcome before the Employment Appeal Tribunal (EAT), the woman, who had been employed by the British government, argued that the embassy was a British territorial enclave. Flying the British flag, the embassy and its grounds were inviolable and even the Egyptian police could not enter them without permission. She had made her whistleblowing complaint to London and it had not been suggested that she should have raised the matter locally.
Rejecting her appeal, however, the EAT noted that she was an Egyptian national, recruited in Egypt, and could not be viewed as an expatriate. She lived in Cairo, working there permanently, and she was usually paid in local currency. She had no entitlement to join the UK civil service union, or to a UK civil service pension, and paid no UK taxes. She had not signed the Official Secrets Act 1989 and any grievances or disciplinary issues would normally have been dealt with locally.
The EAT heard no evidence as to the law of state immunity in Egypt, but accepted that she might have difficulty in pursuing her case against British authorities in her homeland. That factor was, however, not determinative and it was obviously right that her employment was insufficiently connected to Great Britain and British employment law to confer jurisdiction on the ET.
Concerns that small shareholders are the victims of a deficit in corporate democracy, having little influence over the direction taken by the companies in which they invest, were highlighted by a High Court case concerning a troubled mining company.
Tens of thousands of private and relatively unsophisticated investors were believed to have bought shares in the company, often at a price in excess of 20 pence per share. Following a funding crisis, however, the share price fell to just three or four pence. The company’s board had in those circumstances recommended acceptance of a takeover offer at a price of 5.5 pence per share.
The company had 4,628 registered members, a number of whom were stockbrokers, pension funds, ISA providers or others who held shares as nominees for individual investors. Although the investors were the beneficial owners of those shares, they had no right to vote at a meeting of members, the majority of whom voted in favour of a scheme of arrangement which opened the way for the takeover.
After the company launched proceedings seeking the Court’s final sanction of the scheme, a number of individual shareholders objected. It was submitted that the price on offer was too low and would result in a grievous loss to thousands of investors. The restriction of voting rights to registered members was said to have resulted in a legion of small investors being unfairly disenfranchised.
Ruling on the matter, the Court noted the power of the shareholders’ arguments. The case raised a genuine issue concerning shareholder democracy and there was a strong movement to change the law. As the law stands, however, only members of the company had voting rights and the company was under no duty to communicate with its beneficial shareholders. The Court was required to apply the law as it is, not as it might be if changes were made in the future.
In approving the scheme, the Court noted that, although many small investors would lose money if the takeover went ahead, the company’s directors advised that it was the only offer on the table. If the scheme were blocked, the company was expected to swiftly run out of cash. If it went into administration, shareholders would be likely to receive nothing.
Of the 1,314 members who were present at the meeting, in person or by proxy, 812 voted in favour of the scheme and 502 against. The votes in favour represented over 80 per cent of the value of the shares voted. The statutory requirements of 50 per cent of shareholders voting and 75 per cent of value were therefore both achieved.
The meeting was held in accordance with a court order and it was apparent from the sizeable number of speakers and votes against the scheme that the dissenting voice was clearly heard. The Court observed that, if sufficient numbers of small investors had instructed their nominees to oppose the scheme, the outcome could have been different. The company, however, could not be blamed for that. There was no defect in the scheme or any legal impediment to its approval.
Many employers are taking laudable steps to increase diversity in their workforces by recruiting more women. However, as a case involving an unsuccessful candidate for a BBC radio broadcasting position showed, such considerations do not detract from the overriding obligation to avoid gender discrimination.
The case concerned a male broadcast journalist/producer who had worked for a unit of the BBC’s overseas radio service on a freelance basis for about two years. As part of a new project, the BBC sought candidates for two employed positions. He applied and was one of eight shortlisted candidates. His application was, however, rejected following an interview. The two successful candidates were both women.
In pursuing a sex discrimination claim before an Employment Tribunal (ET), the man argued that the successful candidates lacked experience and were less qualified for the job than he was. Although they were asked the same interview questions as he was, he claimed that they were scored more favourably because they were women.
He pointed to an email sent by a human resources executive six months prior to the interview in which the service’s managers were reminded that the issue of female under-representation on its workforce needed to be addressed. In another email, sent following his rejection, a member of the interview panel stated that the project was aimed at a younger audience ‘with emphasis on Women agenda’.
In rejecting his complaint, however, the ET noted that he had been encouraged to apply for the job and that the same panel had appointed a man to a more senior role which had been filled as part of the same exercise. The ET accepted the BBC’s case that his failure to get the job had nothing to do with his gender but resulted from his very poor performance during the interview. The ET’s decision was subsequently upheld by the Employment Appeal Tribunal.
In challenging that outcome before the Court of Appeal, the man argued that the ET had failed to conduct a necessary comparison between his and the successful candidates’ respective radio broadcasting experience. He argued that the successful candidates’ lack of qualifications for the role was such that they should not have been shortlisted or permitted to proceed through the recruitment process.
In rejecting his appeal, however, the Court noted that he had not pressed either of those arguments before the ET. He had in any event failed to establish a clear-cut disparity in the panel’s approach to his answers in interview and those given by the successful candidates. The ET’s conclusions were based on an assessment of factual evidence with which the Court would not interfere.
When long relationships come to an end, disentangling former couples’ property and financial affairs can be challenging. As a Court of Appeal ruling showed, however, the law demands that both parties cooperate so that they can move on with their lives.
The case concerned the breakdown of a 17-year relationship between an unmarried couple, which yielded two children. After the woman moved out of the property the couple had occupied as their family home, she obtained court orders requiring it to be sold and the proceeds equally divided.
After the man failed to cooperate in the sale, a further order was made requiring him to hand over the keys to the woman’s solicitors and to give up vacant possession of the property by a particular date. He was banned from visiting the property without the woman’s express permission and from taking any steps that might impede, obstruct or prevent the sale.
After he continued to visit the property in defiance of that order, eventually resuming his residence there, the wife applied to have him committed to prison for contempt of court. A judge found that he had displayed a high level of culpability in repeatedly breaching the order and clearly had no intention of complying with it. He was sentenced to eight months’ immediate imprisonment.
In dismissing his appeal against that outcome, the Court noted that he simply did not accept the validity of the order requiring him to leave the property and that he viewed it as his right to continue owning and living in it for as long as he wished. Given his intransigence, deliberate disobedience and total lack of contrition, the prison sentence was entirely appropriate.
Vulnerable negligence victims sadly often fall into the clutches of unqualified people who hold themselves out as professionals with expertise in pursuing compensation claims. A High Court ruling served as a warning to all that practising law is for lawyers and that there can be no replacement for a qualified solicitor.
The case concerned a man who had part or parts of a plastic bag left inside him after surgical treatment for acute pancreatitis. After seeing an advert, he contacted a firm which held itself out as providing legal services. The firm was the alter ego of an individual (the defendant) who, whilst having recently obtained a law degree, was bereft of legal qualifications.
After the defendant took up the man’s case, proceedings were launched against the NHS trust that ran the hospital where the operation was performed. An over-inflated sum of almost £3 million in damages was claimed. Due to negligent handling of the litigation, however, parts of the man’s claim were struck out and the trust was awarded summary judgment on the remainder.
The man eventually accepted the trust’s offer of £20,000 to settle his claim, but was left facing legal costs bills totalling £70,000. In those circumstances, he issued what was described as a quasi-professional negligence claim against the defendant and his firm.
Upholding the claim, the Court found that the firm’s headed notepaper was intended to mislead potential clients into thinking that it was more than a one-man operation and that the defendant had some professional legal qualifications. The man was given the impression that the defendant had extensive experience of handling these types of claims and was as good as, if not better than, any barrister or solicitor.
The engagement letter that the man received from the firm amounted to a contract that it and the defendant would act as his legal advisers. They held themselves out as having the skill and know-how of an experienced litigation executive in a firm of solicitors. They owed him a duty of care, but the reality was that they were out of their depth and simply had no idea how to conduct the litigation.
The man bore some culpability for weakening his own claim. However, the trust had made a limited admission of liability prior to the collapse of his case and, had it been appropriately managed, it would have stood a 65 per cent chance of success. Due to the negligence of the defendant and his firm, the man had lost that chance of receiving substantial damages.
The Court found that, had he been represented by an experienced solicitor, the likelihood was that the trust would have settled his claim for a substantially higher sum. He would probably have received £35,000 in damages for his pain, suffering and loss of amenity and further sums to reflect his financial losses and care needs. The trust would also probably have agreed to pay his legal costs. The precise amount of damages payable to the man by the defendant and his firm had yet to be calculated.
Adopting children from overseas is fraught with legal pitfalls and those who attempt to do so without first taking expert advice expose themselves to heartbreak. In one case, however, the High Court came to the aid of a British woman who adopted a little girl who was found abandoned beside a Ugandan roadside.
The girl appeared to be about eight months old when she was found. After attempts to trace her genetic parents or wider family failed, she was placed in the foster care of a British woman who had been living in Uganda for some years. After forming a strong bond with the child, the woman applied successfully to a Ugandan court to adopt her.
The woman wished to return to England, but the Home Office had refused to grant a visa in respect of the child, who was believed to be aged about six, on the basis that the UK does not automatically recognise Ugandan adoptions. The woman sought legal advice and applied for an order officially recognising the Ugandan adoption in England.
In granting the order sought, the Court found that the woman was domiciled in Uganda at the time of the adoption. Although her marriage to a Ugandan man had failed, she had been living in Uganda for over a decade and had intended to make it her permanent home. She had dual British and Ugandan citizenship and had only decided to return to England for pressing family reasons.
The Court was satisfied that she had legally adopted the girl in accordance with the requirements of Ugandan law and that the foreign adoption had the same essential characteristics as an English adoption. There was no public policy or other reason why the Ugandan adoption should not be recognised.
The final decision as to whether the girl would be permitted to enter the UK with her mother lay with the Home Secretary, but the Court’s ruling greatly improved the chances of the required visa being issued.
If you are an entrepreneur and own your own company, that is all the more reason why you should take professional advice regarding the issues that might arise on your death. In an unusual High Court case on point, a farm contracting business was left rudderless by the demise of its founder.
The founder was the company’s sole director and shareholder. His shares passed automatically to the executors of his estate when he died. However, the company was left without a director and its bank stated that it would not be able to operate its account without the authority that only a director could provide.
As a result, the account was effectively frozen. The company was unable to pay creditors or to cover operating costs as its busiest time of the year approached. Although long-standing members of its staff were able to run the business on a day-to-day basis, there was an imminent risk that the company would fail if it could not meet its contractual commitments and otherwise carry on its business.
Given the great urgency of the situation, the executors launched proceedings before applying for probate of the founder’s will. Coming to their aid, the Court exercised its power under Section 125 of the Companies Act 2006 to rectify the register so as to record them as members of the company. In that capacity, they would be able to pass a written resolution appointing a new director, or directors, of the company.
Sexual harassment proceedings against disgraced film producer Harvey Weinstein gave rise to a thorny jurisdictional issue that threatened to undermine the power of Employment Tribunals (ETs) to make evidence disclosure orders against those who are not physically present in Great Britain.
The case concerned a woman’s claim against Weinstein, a convicted sex offender, and nine companies and individuals which were said to be associated with him. One of those individuals, who lived and worked in the USA, argued unsuccessfully at a case management conference that an ET had no jurisdiction to make a disclosure order against him whilst he remained outside Great Britain.
His appeal against that ruling hinged on the interpretation of Rule 31 of the 2013 Employment Tribunal Rules of Procedure, which states in terms that an ET ‘may order any person in Great Britain to disclose documents or information’. It was submitted that there was only one possible interpretation of the rule.
The Employment Appeal Tribunal (EAT) accepted that the plain reading of the rule pointed firmly in the direction of the interpretation that the man contended for. An ordinary person reading the rule would conclude that ETs can only make disclosure orders against persons who are physically present in Great Britain.
Such a literal interpretation would, however, have odd results. It would mean that many thousands of disclosure orders issued by ETs in the past against those not present in Great Britain had been wrongly made. Such a geographical barrier to disclosure would not be in harmony with the overriding objective of deciding cases fairly and justly and would produce a result close to absurdity. It would also clash with the United Kingdom’s international obligations.
It was likely that references to Great Britain in the 2013 rules and predecessor rules were influenced by the decision to enact a single set of rules applicable to ETs throughout Great Britain. The explanation might be that the drafters of various versions of the rules had not adequately thought through the potential effects of the wording used.
The EAT cautioned itself against going beyond interpretation and rewriting the rule. However, given the injustice that a literal reading of the rule would work, it strove to find an alternative. In dismissing the man’s appeal, the EAT accepted the woman’s strained construction of the rule to the effect that the words ‘in Great Britain’ are a reference to the location of the ET making the disclosure order, not to the location of the person against whom the order is made.
The freeholds of a great many blocks of flats are held by tenant-owned companies which operate on democratic principles. Such arrangements are, however, not a panacea and disagreements can arise. A guideline Supreme Court decision will, however, make it easier for tenants to know where they stand.
The case concerned a block of nine flats, held on 125-year leases. The tenants were all shareholders in a company which owned the freehold (the landlord). The leases contained a number of covenants, including one which prevented tenants from cutting into any roofs, walls, ceilings or service media.
One tenant sought the landlord’s consent to carry out works on her flat involving the removal of a substantial part of a load-bearing wall at basement level. Another tenant (the objector) opposed the proposed works, but the landlord stated that it was minded to permit them. After the objector took action, her argument that the landlord had no power to authorise the works without the unanimous consent of all the tenants succeeded before the Court of Appeal.
Unanimously dismissing the tenant’s appeal against that outcome, the Supreme Court noted that the proposed works went beyond routine alterations and improvements and had the potential to be damaging or destructive of the block. The covenant was couched in absolute terms and another provision of the objector’s lease entitled her, on giving appropriate security, to require the landlord to enforce it as such.
It was an implied term in the objector’s lease that the landlord would not put it out of its power to enforce the covenant by permitting works which would otherwise be a breach of it. It was entirely appropriate that works of the kind that the tenant wished to carry out should require the consent of all the tenants.
Few would quarrel with the long-standing rule of law that anyone who unlawfully kills another is barred from benefiting, financially or otherwise, from his or her crime. In a unique decision, however, the High Court waived that rule in the case of an elderly wife who caused her beloved husband’s death by her careless driving.
The wife, who was in her 70s, was driving her husband home after they got lost on the way to his sister’s funeral. She had been behind the wheel for several hours; the conditions were wet and the light was fading. She drove at speed into a line of traffic at a roundabout, triggering a four-vehicle pile-up. Her husband, aged 81, was fatally injured. She subsequently pleaded guilty to causing his death by careless driving and received a 32-week suspended prison sentence.
Under her husband’s will, the wife would ordinarily have received the whole of his estate. As they jointly owned their home, his share in the property would also have automatically passed to her. Her entire inheritance was, however, placed in jeopardy by Section 1 of the Forfeiture Act 1982, which enshrines the rule that in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing.
In arguing that the rule did not apply to her, the wife pointed out that her crime was not deliberate or intentional and that the death of her partner of 30 years was as much a tragedy for her as for anyone else. The Court acknowledged that the case raised issues on which there was no previous authority, but found that the forfeiture rule applies as much to those who cause deaths by careless or dangerous driving as it does to perpetrators of murder or manslaughter.
However, the Court decided that, on the particular facts of the case, it would be wrong for the forfeiture rule to apply so as to deprive the wife of the gift her husband had made to her in his will and his share of the matrimonial home, which they had built together. The Court exercised its power under Section 2 of the Act to modify the rule so as to avoid that unjust outcome.
Part-time referees who officiate at professional football matches on a game-by-game basis are not employees. Confirming their self-employed status in a guideline case, the Upper Tribunal (UT) noted that they are so motivated to work that there is no need to place them under a contractual obligation to do so.
The case concerned the so-called ‘National Group’ of referees who are engaged by Professional Game Match Officials Limited (PGMOL) to officiate at matches below Premier League level. They perform refereeing duties in their spare time, typically alongside other full-time employment, and receive expenses and match fees in respect of their services.
HM Revenue and Customs (HMRC) said that they were employees and that Income Tax and National Insurance Contributions should, in respect of two tax years, have been deducted at source from those payments via the PAYE system. The First-tier Tribunal (FTT), however, preferred PGMOL’s arguments that they were self-employed and that no such obligation arose.
In its decision, the FTT found that there were overarching annual contracts between PGMOL and the referees. There were also separate contracts in respect of each match for which a referee was engaged. Crucially, however, it ruled that there was no sufficient mutuality of obligation existing between PGMOL and the referees to render the relationship one of employment.
Dismissing HMRC’s challenge to that outcome, the UT found that the referees were engaged under contracts for services, as opposed to contracts of service. PGMOL could cancel a referee’s appointment to officiate a match without contractual limit and without committing a breach of contract. A referee could do the same for any reason, including illness, injury, other work commitments or even if a traffic jam made him or her late to a match.
A referee failing to turn up for a match would not amount to a breach of contract and the only obligation on PGMOL was to pay referees for work actually done. The reality of the arrangement was that referees were so keen to make themselves available for matches as much as possible that there was no need either to offer them work or to place them under any legal obligation to perform it. The minimum mutuality of obligation required to found an employment relationship was thus not present.
When children suffer injury, suspicion very often falls on their parents. Allegations of such gravity must, however, be proved and, in one case, the High Court exonerated a loving couple who were accused of assaulting their six-month-old baby.
When taken to hospital by her parents and maternal grandparents, the little girl had a number of pinpoint haemorrhages on her face, known as petechiae, which extended into her eyes. There was also swelling around her eyes and, after medical staff concluded that the most likely explanation was that an attempt had been made to suffocate her, a local authority launched care proceedings.
After a fact-finding hearing, a judge ruled that the girl had suffered non-accidental injuries which had been inflicted on her by her father. He, however, successfully challenged that conclusion before the Court of Appeal, which directed a fresh hearing of the matter.
Following a further five-day hearing, the Court noted that the intensity and patterns of the petechiae were unusual and possibly unique in the experience of clinicians involved in the case. The mother clearly doted on her child and could safely be excluded from the pool of possible perpetrators. The father’s love for his daughter and child-centred attitude also meant that it was improbable, although not impossible, that he could have subjected her to a prolonged assault.
The Court lamented the fact that, despite the best endeavours of medical experts, lawyers and judges, it had not been possible to provide a definitive answer to the question of how the petechiae were caused. The absence of such a clear conclusion was bound to leave the parents and others with a sense of discomfort. The burden of proof, however, fell upon the local authority and it had failed to establish on the balance of probabilities that either parent assaulted the girl.
The human right to peaceful enjoyment of private property must sometimes give way to the national need for major infrastructure projects. The High Court made that point in rejecting a concerned householder's bid to force a rethink of the design of part of the HS2 rail link's proposed route on safety grounds.
The woman had lived for over 60 years in a listed Georgian villa. A few metres from the front of her property there was a massive retaining wall which divided a road from a Victorian railway cutting. The wall, which was 12 metres high and three metres thick, had suffered substantial movement over the years since its construction in 1901 and showed signs of cracking.
In judicial review proceedings, the woman challenged a proposal to construct three new tunnels under the area as part of the HS2 project. She presented engineering evidence indicating that the three-tunnel design was fundamentally unsafe and would create a risk of the wall’s catastrophic collapse.
Worry about the design was said to have seriously harmed the woman’s mental and physical health. The value of her property had been undermined and it was argued that proceeding with the project would violate her human rights to respect for her home and family life and to peacefully enjoy her private property.
In rejecting her challenge, however, the Court noted that it was not its role to subject the complex engineering aspects of the design to minute analysis or to express any view about the underlying merits of the project. It was unpersuaded that the design represented an insurmountable engineering challenge or that the tunnels could not be constructed safely.
The design had a number of clear environmental and operational advantages and the Department for Transport and High Speed Two Limited had assured the Court that work on the tunnels would not commence before full risk assessments and safety appraisals had been carried out.
Ruling that the project would not place the woman under a disproportionate or excessive burden, the Court noted that a number of legal remedies would be available to her if the project harmed her property interests. Overall, the design struck a fair balance between her private interests and the wider public interest in implementing an infrastructure project of national importance.