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The case considered whether the defendant builder, K, had been in repudiatory breach of contract or, alternatively, whether termination of the construction contracts by the claimants, S and T, in itself constituted repudiatory conduct. K had agreed to carry out construction works at three properties owned by S or T (T being a director of S). S and T had purported to terminate the contracts by way of the K’s alleged repudiatory conduct, and which included delay and defects. K had transferred his business to a limited company (H) after the making of payments, and had commenced the action for payment by H in error. That claim was struck out. S and T claimed against K for losses associated with the termination. As to delay, the judge found that the completion dates for the contracts had been waived by K as a result of the variation of the works, supported by evidence of continued payment post the original completion dates. Further, correspondence urging K to complete the works did not have the effect of making time of the essence because it didn’t specify a time for compliance or the consequences of a failure to comply. As to defects, the judge found that there had not been a sufficient accumulation of minor defects to demonstrate repudiatory conduct by K. Accordingly, there was no reason for S and T to terminate the contract and the termination itself had been a wrongful repudiation of contract. However, K did not succeed in his claim for further payment because, taking into account the cost of making good defects, he had not established any further entitlement.

Allied P&L Ltd v Paradigm Housing Group Ltd [2009] EWHC 2890 (TCC)

The case concerned enforcement of an adjudicator’s decision where it was asserted by the resisting party, P, that there had been various issues referred that had not been in dispute at the time of the Notice of Adjudication. P, the employer, had given A, the contractor, a first notice indicating various aspects of work with which P was not satisfied. Following a second notice, P determined the contract and ejected A from site. The judge held that there had been a dispute about whether there were grounds to justify termination by P because A had challenged the first notice as to grounds for termination. However the fact that P may or must have known that there would be the usual financial consequences flowing from the termination procedure which it invoked if it turned out to be unlawful was held to be broadly immaterial in determining what the ambit of the dispute was. Where there had been a failure by A to notify or intimate to P the money claims it proposed as arising out of the termination then the dispute did not include any or any alleged entitlement to money or damages. However, there was no valid or effective jurisdictional reservation made by P on the grounds that no dispute had crystallised in relation to the financial consequences of the unlawful termination as asserted by A and therefore the judge enforced the adjudicator’s decision.

Education 4 Ayrshire Limited v South Ayrshire Council [2009] CSOH 146, Outer House.

E, the contractor, was engaged to do works under a PPP contract with S the local authority. Following discovery of asbestos in the works, E claimed declarations that the works were delayed and that it was entitled to postponement of work plus a claim for compensation. However, the judge held that, pursuant to the clauses of the PPP contract, E had failed to give sufficient notice to S. Notice was agreed to be a condition precedent to the right of E to claim compensation or relief. Further, such notice had to comply strictly with various requirements stipulated in the contract, including to give notice of what claim the pursuer, E, was making The judge, construing the contract on that basis, held that E had failed so to comply because the letter on which it relied failed to stipulate which of the remedies E was claiming for. In so doing, he held that where parties have laid down in clear terms what has to be done by one of them if he is to claim certain relief, the court should be slow to seek to relieve that party from the consequence of failure.

No Order For Costs In Court Of Appeal Against Unsuccessful Respondent Where Litigation Began In Cost- Free Jurisdiction
The Governing Body of St Albans Girls’ School & Anor v. Neary, CA, 20/11/09
The Court of Appeal held that whilst in the Court of Appeal it is usual for costs to follow the event, in the instant appeal, the appropriate order was no order as to costs. The Respondent individual began proceedings in the Employment Tribunal, being a cost-free jurisdiction. Although unsuccessful at first instance, the Respondent succeeded before the Employment Appeal Tribunal. The Appellant wished to overturn a line of EAT authority and thus the Respondent was pitched against his will to come before the Court of Appeal, being a costs-bearing jurisdiction. The Court of Appeal held that it would have been very hard on the Respondent to have to cave in simply to avoid the risk of an adverse costs order against him. In determining that no order for costs was appropriate, the Court of Appeal took into account that the Respondent was impecunious and as such it was unrealistic to make a costs order against him.


CIVIL PROCEDURE

Judicial Guidance On Applications to Adjourn At The Eleventh Hour
Fitzroy Robinson Ltd v. Mentmore Towers Ltd & Ors, QBD(TCC), 2611/09
Coulson J handed down guidance on the relevant principles to be applied in determining whether to grant a contested application brought at the eleventh hour to adjourn a trial. Coulson J held that the starting point was the overriding objective and ensuring that the parties were on an equal footing. In particular, a Court should have specific regard to: (a) the parties’ conduct and the reasons for the delay; (b) the extent to which the consequences of the delays can be overcome before the trial; (c) the extent to which a fair trial may have been jeopardised by the delays; (d) specific matters affecting the trial, such as illness of a critical witness and the like; and (e) the consequences of an adjournment for the claimant, the defendant and the court.

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The EAT (Underhill P) has handed down its decision in Pulham v London Borough of Barking, an age discrimination / pay protection case, which is authority for the following propositions:

• in assessing justifiability, a tribunal is entitled to have regard to the fact that a discriminatory measure was negotiated with the unions, but a tribunal cannot abdicate the responsibility of itself carrying out the necessary proportionality exercise.

• the size of relevant budgets is a useful benchmark, but cannot be determinative: an employer cannot justify a failure to eliminate discrimination by allocating the costs of doing so to a particular budget and simply declaring that budget to be exhausted.

• parties should ensure that tribunals are given sufficient information about both (a) the discriminatory impact of a particular measure on claimants and; (b) the alleged costs and the financial background against which the affordability of those costs falls to be judged.

Discrimination: Philosophical belief

The Employment Appeal Tribunal (Burton J sitting alone) has held in Grainger plc v Nicholson that a belief in man-made climate change, and the alleged resulting moral imperatives, is capable of being a 'philosophical belief' for the purpose of the Employment Equality (Religion or Belief) Regulations 2003.

Guidelines as to what constitutes a 'philosophical belief' are set out at paragraph 24, which I recommend reading. Paragraphs 26-31 are also worth reading in this extremely interesting judgment.

Volunteers not covered by the Disability Discrimination Act

X v Mid-Sussex CAB is authority for the proposition that 'volunteers' (such as unpaid charity or CAB workers) are not protected by the Disability Discrimination Act or the EU Framework Directive.

The Claimant was a volunteer part time advisor at the CAB. She had no contract. She left in circumstances which she alleged amounted to discrimination on grounds of her disability. She argued she was protected by the EU Directive, and that the DDA should be 'read down' to provide that protection.

Burton J, in the EAT, held that her claim should be struck out. He held "employment" in the Directive requires a material contract between the parties. He observed there was no jurisprudence to suggest that "occupation" meant unpaid employment; also, that the Directive offered protection only in relation to "access" to occupation. He held the Directive was not intended to protect volunteers in the Claimant's position and declined to make a reference to the ECJ on the point.

Disability Discrimination: Reasonable Adjustments

Section 4A(3) of the Disability Discrimination Act 1995 states that employers do not need to make reasonable adjustments in certain circumstances.

The EAT has, this week, handed down its decision in DWP v Alam, which is authority for the proposition that two questions arise when deciding whether s4A(3) applies:

1. did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?

2. if not, ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?

The employer will be exempt from any duty to make reasonable adjustments if both those questions are answered in the negative. The requirements of section 4A(3)(b) are not to be interpreted cumulatively.

Relief from sanctions

The Court of Appeal has handed down its decision in The Governing Body of St Albans Girls' School v Neary, which is authority for the proposition that an employment judge considering an application for review of a sanction is not under an obligation to expressly consider each of the potentially relevant factors set out in CPR 3.9 (overturning the EAT's decision). It should be inferred that Parliament deliberately did not incorporate CPR 3.9 into employment tribunal practice.

The requirement on a Judge is simply to show that he has weighed the factors affecting proportionality and reached a tenable decision about it. He need not use any particular form of words, but it must be possible to see that the judge has asked himself whether in the circumstances the sanction had been just.

Previous EAT authorities requiring an employment judge to take into account all CPR 3.9 factors are no longer good law.

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The Appellant (L) appealed against an order for her extradition to Hungary on the basis of extraneous considerations, (Section 13), in that she is a lesbian of Roma origin. L contended that if extradited she would be at risk of discrimination and would not receive a fair trial (Article 6). L also raised Articles 3 and 8 of the ECHR on the basis that she was vulnerable to self-harm and had lived in the UK for four years with her partner and their two daughters. HELD: There was no merit in L’s claim that due to her sexual orientation or her Roma origin, she would be prejudiced, nor was there any compelling evidence that L would not receive a fair trial in Hungary. Pursuant to Article 8, L’s partner and children could relocate and thus there was no adverse impact on L’s private life. Further, there was no compelling evidence that L suffered from any mental illness and following the requesting state’s concession that it would comply with Convention obligations, Article 8 was not engaged. Appeal dismissed.

Kozluk v. Poland (30/11/2009)

The Appellant (K) appealed against the decision of the District Judge not to order his discharge from proceedings concerning his extradition to Poland. K is a Polish national sought for the purpose of executing a ten-month custodial sentence for a transport safety offence in Poland. K was arrested pursuant to a European Arrest Warrant in July 2009. His extradition hearing was set for 22nd July but was subsequently adjourned on several occasions in order to allow K’s application for legal representation to be processed. On 27th August 2009 K applied to be discharged in accordance with Section 8(7) of the Extradition Act 2003, on the basis that his extradition hearing had not been commenced within the required 21 days (Section 8(4)) and that there was no reasonable cause for the delay. The District Judge dismissed K’s application for discharge on the basis that the relevant District Judge, although she had not stated so in open court, had had it in her mind to open the extradition hearing and that the delay had arisen as a result of the process of enabling K to secure representation which was reasonable (Section 8(7)). HELD: An extradition hearing did not formally commence simply by the process of the case being called on in court. Something had to be said or done to show that the extradition hearing had been started. An adjournment did not amount to a step in the extradition proceedings sufficient to deem the extradition hearing formally open. Thus K’s extradition hearing had not been commenced within the 21 days required by the Extradition Act. The District Judge was however entitled to conclude that the difficulty in securing legal aid was a reasonable cause for the delay. Appeal dismissed.

Sandi v. Craiova Court, Romania [2009] EWHC 3079 (Admin) (27/11/2009)

The Appellant (S) appealed against the District Judge’s decision to send his case to the Secretary of State for a decision on whether or not his extradition should be ordered on the basis that he was convicted in absence, he was not deliberately absent and he would not now be entitled to a re-trial. His extradition was sought for the purpose of executing a twenty-year custodial sentence for offences of murder and illegal possession of a firearm. The Secretary of State ordered S’s extradition in September 2008. The District Judge heard evidence from S and was served written evidence from the requesting state. S denied being present at his trial and stated that he had not instigated the subsequent appeal. The requesting state confirmed that S had been in custody at the relevant times and was properly informed of the hearings. The District Judge concluded that S was aware of his trial and was convicted in his presence. Any absence had been voluntary. On appeal, S further contended that his ‘trial’ had not been concluded until at the appeal court and thus for the purpose of Section 85 of the Extradition Act 2003, he was convicted in his absence, not having deliberately absented himself. The requesting state submitted that the appeal was not part of the trial process in the sense contemplated by Section 85. HELD: The District Judge was entitled to reject portions of S’s evidence. For the purpose of Section 85, S’s trial was at the court of first instance. S was present at least for the key parts of his trial and any absence was entirely voluntary on the advice of an experienced lawyer instructed on his behalf. Appeal dismissed.

Sinani v. Albania [2009] EWHC 2773 (Admin) (24/11/2009)

The Appellant (S) appealed against a decision to order his extradition for the purpose of executing a custodial sentence on the basis that the European Arrest Warrant did not sufficiently particularise the conviction in accordance with Section 2(6)(b) of the Extradition Act 2003. HELD: “Particulars of conviction” in Section 2(6)(b) did not require the same level of detail as required by Section 2(4)(c) accusation warrants. The legislative scheme was designed to remove undue complexity. The appropriate level of particularity would depend on the circumstances of each case but Article 8 of the Framework Decision did not require the same level of detail in a conviction warrant as it did for an accusation warrant. An accusation warrant would require more than a general indication of the alleged criminal conduct. A conviction warrant would almost always require details of the number of offences, when and where the offences were alleged to have been committed and the person’s involvement in them. The warrant in S’s case was properly particularised and sufficiently clear. Appeal dismissed.

Nowak v. District Court in Koszalin, Poland (20/11/2009)

The Appellant (N) appealed against an order for his extradition to Poland pursuant to Article 2 and 3 of the ECHR on the basis that he believed that if returned he would be at risk of physical attacks from a known and influential gang to whom he and a business partner owed money. N was sought by Poland for the purpose of prosecution for several offences including theft, robbery, wounding by stabbing and fraud. The requesting authority provided written confirmation that there was no connection between N and the gang and that they posed no threat. N submitted that the District Judge had failed to deal with various aspects of his evidence including the death of his business partner. HELD: It was regrettable that the District Judge had failed to deal with some of N’s evidence but this did not lead to the conclusion that the District Judge should have decided the question of N’s convention rights differently. N could give the same evidence at his trial in Poland. Appeal dismissed.

Louca v. Germany [2009] UKSC 4 (19/11/2009)

The Appellant (L) appealed against a decision of the Divisional Court dismissing his appeal against extradition orders made pursuant to a European Arrest Warrant. L’s extradition was sought for prosecution in Germany for offences of tax evasion. L challenged the validity of the European Arrest Warrant, pursuant to Section 2(4)(b) of the Extradition Act 2003, on the basis that it did not include details of two earlier European Arrest Warrants which had now been withdrawn. The Divisional Court had held that the reference to ‘other warrants issued’ in Section 2(4)(b) was concerned with domestic warrants on which the European Arrest Warrant was based and not other European Arrest Warrants. L submitted that ‘other warrants’ must have been intended to include prior European Arrest Warrants as well as domestic warrants if only in order to found potential abuse of process arguments. HELD: Abuse of process and other “due process” factors were comprehensively covered by Sections 11 to 20 and Section 21 of the Extradition Act 2003 and thus there existed no reason to read Section 2 as requiring details of other European Arrest Warrants to be included. Appeal dismissed.

Gradica v. Public Prosecutor’s Office, Court of Turin [2009] EWHC 2846 (Admin) (11/11/2009)

The Appellant (G) appealed against an order for his extradition to Italy for offences of attempted murder and unlawful possession of weapons, on the basis that he had been convicted in his absence, had not deliberately absented himself and would not now be guaranteed a full re-trial, in breach of his Article 6 Convention rights. HELD: Although the requesting authority had provided evidence that re-trial rights were discretionary they also confirmed that Italian law had been interpreted in compliance with Convention principles including a series of domestic law guarantees. There were adequate assurances that the Italian court would afford G his Article 6 Convention rights. Appeal dismissed.

The CA granted a mother permission to appeal against a warning notice directed to her which had been attached to a Shared Residence Order. Enforcement proceedings had been commenced.

Baker v Rowe CA 06.11.2009

The CA considered an appeal in relation to costs arising out of a former son in law’s intervention in ancillary relief proceedings. It had been ordered that the son in law pay the daughter’s costs in relation to these proceedings. These matters had previously been the subject of an appeal from a District Judge to a Circuit Judge. The CA considered the costs rules and held that the costs order had been properly made. The CA however highlighted an error by the Circuit Judge who had stated that permission had been required for the appeal to him from the District Judge’s order.

Re: KB (a child) v Borough Council & Ors CA 25.11.09

The CA allowed the appeal of a local authority against the refusal of an ICO in circumstances where an ICO had been unopposed in relation to an elder half-sibling of the child KB. The CA held that the judge had seriously understated the harm to the elder child and minimised the risk to KB. The Judge had further not given reasons for departing from the guardian’s recommendation. The CA granted an ICO.

Bank charges levied on accounts with unauthorised overdrafts were not subject to review by the OFT in respect of fairness because the scope of regulation 6 (2) (b) of the Unfair Contract Terms in Consumer Contracts Regulations 1999 (which limits the OFT’s assessment in respect of the adequacy of the price or remuneration, as against the goods or services supplied in exchange) included such bank charges. It was not, as the Court of Appeal had held, limited to “core terms” of the contract. The charges might still be open to assessment by the OFT on other grounds under Regulation 5.

FSA v Nomura 25/11/09

The FSA fined Nomura £1.75 million for failures in its systems and controls in the bank’s equity derivatives business. The failures related to the manner in which trades were entered into Nomura’s accounting systems which had allowed trades to be mismarked for five months. The fine represented a 30% discount in return for settling the investigation early and agreeing not to appeal the penalty.

On 28 October 1999 the claimants, Mr and Mrs Dhami, took out a building and contents insurance policy relating to their home with the defendant. The insurance policy was renewed each year and on renewal questions asked included whether anyone normally living with them had ever been convicted of any criminal offence other than a motoring offence. Mr and Mrs Dhami answered in the negative. On 15 March 2004, the property was damaged by fire to the garage and a claim was made. At the time of the fire, the property was occupied by their sons. One of the sons had a number of criminal convictions. The claim was rejected. The claimants commenced proceedings against the defendant on the basis that they had no knowledge of their son’s criminal record. The case was dismissed as the non-disclosure was material. On appeal, Mr and Mrs Dhami attempted to introduce fresh evidence, but it was rejected as falling foul of the three Ladd v Marshall principles. The appeal was dismissed.

A C Ward & Sons Ltd v Catlin (Five) Ltd (CA) 10/9/09

The insurer provided content insurance for the claimant's wholesale distribution warehouse. The contents insured were cigarettes, tobacco and alcohol. Endorsement 6 of the insurance policy stated that theft cover in respect of the stock of cigarettes and tobacco was not operative outside of business hours unless the stock was kept within the special secure store on the ground floor. However, a significant amount of the claimant's insured goods were stored on the mezzanine floor and therefore under endorsement 6 would not be covered at weekends. The parties agreed that endorsement 6 would be removed subject to the claimant putting in place risk improvement requirements. The policy also contained two warranties: a protection maintenance warranty and a burglar alarm maintenance warranty. On 18 March 2007, burglars stole about £440,000 worth of cigarettes and tobacco from the secured area on the mezzanine floor. At the time of the burglary the alarm system was deficient and the motion detectors had been angled incorrectly. The insurers resisted liability on the grounds that the claimant had been in breach of the warranties before the loss occurred and, therefore removal of endorsement 6 could be avoided for material non-disclosure and/or misrepresentation on the basis that the claimants had not complied with all the risk improvement requirements. On a claim for indemnity against the insurers, it was held that the claimant was only in breach of warranties if there was some defect in the particular protection or the burglar alarm system, of which the claimant had become aware or should reasonably have become aware and had then failed to remedy promptly. The insurers appealed on the basis that breach of the warranties had occurred. The Court of Appeal dismissed the appeal and held that the insurers’ interpretation of the warranties were draconian and that the more unreasonable or draconian the effects of insurance terms were, the more clear and specific they had to be. Accordingly, the warranties and their effects can only be determined at trial having regard to the facts.

Sulaman v Axa Insurance Plc (CA) 11/12/09

This was an appeal on costs that arose from a fraud practised on Axa Insurance by a number of persons who insured genuine cars against third party fire and theft. An initial instalment premium was paid and a direct debit system set up but soon after the inception of the insurance, the fraudsters claimed that the car had been involved in an accident for which the owner was to blame. There was therefore an innocent (but usually fictitious) victim who had a claim which was bound to succeed against the driver, who was himself sometimes fictitious and sometimes genuine but unaware that proceedings were to be taken against him. Claims for repairs, hire charges and such like would be made by a claims management firm and those claims would be paid by the insurers to the claims management firm or as that firm directed. When the insurers realised what was happening they refused to pay further claims; the persons whose cars had been supposedly insured began to bring actions to recover sums for which the car owners were supposedly liable. The insurers sought to recover all the sums they had paid out in consequence of the false claims. Six persons were joined, including Ms Sulaman. She had lied to the Court and, even though successful in her case, the trial judge only ordered that she receive one third of her costs. Ms Sulaman appealed. The Court of Appeal held that in the circumstances of the case, the judge had been entitled to make the order that he had. In light of Ms Sulaman's lies, the judge had been entitled to make an order depriving her of some part of the costs she would have otherwise recovered. The appeal was dismissed.

Gemstar-TV Guide International Inc & Ors v Virgin Media Ltd & Anr, Ch Div (Mann J) 26/11/09
In a patent infringement action concerning Gemstar’s three patents relating to electronic programming guides for television services, Virgin successfully counterclaimed for revocation of the patents. The first two patents consisted of excluded subject matter as they were computer programs which contributed no technical effect and were mere presentation of information. In any event they were obvious or anticipated by a “Superguide” product available earlier in the US. The third patent achieved a technical effect but was anticipated by the prior art.

Teva UK Ltd v Merck & Co Inc, Ch Div (Floyd J), 20/11/09
A European patent concerning an ophthalmic formulation for the treatment of glaucoma was revoked. The co-formulation, in topical eye-drops, of a beta-blocker and a carbonic anhydrase inhibitor lacked novelty and was obvious over the prior art and common general knowledge. Of the patentee’s proposals to amend the patent, only one was allowable and the rest added matter. The allowable amendment did not save the patent from invalidity.

Leo Pharma A?S & Anr v Sandoz Ltd, CA (Sir Anthony Clarke MR, Jacob LJ, Patten LJ), 17/11/09
An appeal was dismissed, against a decision that a patent concerning calcipotriol monohydrate for the topical treatment of skin conditions such as psoriasis and acne was valid. The judge’s reasoning and conclusions could not be faulted in any way. It was unfortunate that different national courts had reached different conclusions on the validity of the same patent but this was curable only by a single European Patent Court.

Grimme Landmaschinenfabrik GmBh & Co KG v Derek Scott, Ch Div (Floyd J), 3/11/09
The claimant’s European patent concerning a machine for separating potatoes from other material collected in harvesting was valid, other than Claim 1 which was invalid for obviousness. The claims which were valid had been infringed. Unregistered design rights also subsisted in the design of the machinery and these had been infringed by some of the defendant’s machinery. Threats made by the claimant in respect of patent infringement were justified, but veiled threats in relation to design rights were not fully justified.

Trade Marks

Sun Microsystems Inc v M-Tech Data Ltd & Anr, Ch Div (Kitchin J), 25/11/09
Sun Microsystems was granted summary judgment in proceedings for trade mark infringement against importers of computer hardware into the UK from the US. There was evidence that the drives were first placed on the market outside the EEA, and there was nothing to suggest that the claimant had consented to the importation. The enforcement of trade mark rights did not constitute a breach of the free movement rules in articles 28 to 30 of the Treaty. The allegation that the exercise of Sun’s trade mark rights was prohibited by article 81 had no real prospect of success.

William Evans & Anr t/a Firecraft v Focal Point Fires Plc, Ch Div (Peter Smith J), 10/11/09
Summary judgment was granted against the defendants on a claim for passing off. A previous decision by the intellectual property registrar’s hearing officer, holding that the defendant’s trade mark registration for the mark “Firecraft” was invalid under s.5(4)(a) TMA because of the claimants’ earlier rights in that trade mark, was binding by way of cause of action and issue estoppel. The registrar was a court of competent jurisdiction in relation to the identified issues, and it would be an abuse of process to allow the defendants to re-litigate the matter in an attempt to reverse the unappealed decision.

Wasabi Frog Ltd v Miss Boo Ltd & Anr, Ch Div (Warren J), 4/11/09
The balance of convenience favoured the granting of an interim injunction where there was a strongly arguable case of trade mark infringement and a well arguable case in passing off. The claimant’s marks were BOOHOO and BOOHOO.COM for women’s fashion. The defendant had recently launched an online retail business in direct competition under the name MISS BOO and MISSBOO.CO.UK.

Copyright

R v Christopher Gilham, CA (Stanley Burton LJ, Penry-Davey J, Sharpe J), 9/11/09
An appeal was dismissed against convictions for offences under the CDPA 1988 s.296ZB, arising from the offender’s dealing in modchips which enabled counterfeit games to be played on consoles. The appellant claimed that because the data in the consoles’ RAM was constantly overwritten, at any one time only a very small percentage of the data on the disc was present in RAM and this did not amount to a substantial part of the work. The CA held that the images generated on the screen and the sounds played were themselves works protected by copyright, and even if the contents of the RAM at any one time was not a substantial copy of the whole work, the image shown and sounds played were substantial copies of those works.

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Trustees of unincorporated charitable trust unable to bring defamation claim to protect trust’s reputation

North London Central Mosque Trust v Policy Exchange & MacEoin [2009] EWHC 3311 (QB)
A charitable trust’s claim for defamation was struck out because as an unincorporated association a charitable trust it lacked the capacity to bring a claim for defamation; neither could its trustees bring a claim on behalf of the trust in order to vindicate its reputation.

PRIVACY

Norwich Pharmacal order granted against Wikipedia to identify user publishing private information on online encylopaedia; claimants anonymised,
G and G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB)
An order was granted under Norwich Pharmacal principles that the company responsible for Wikipedia reveal the IP address of a user that had posted private details about the applicants, a woman and her daughter, which they believed was part of a blackmail attempt. The hearing was in private and the applicants were anonymised to protect their privacy, but an application to anonymise the Defendant was refused

Injunction restraining television programme refused where public interest outweighed privacy interests
BKM Ltd v BBC [2009] EWHC 3151 (Ch)
The applicant company, operators of a care home, were denied an injunction restraining broadcast of a BBC programme focusing on standards of care on the home and including surreptitiously shot footage. Any interference with the home residents’ Article 8 rights would be minimal (especially as their faces would be pixelated), whereas there was a clear public interest in the standard of care and the ability of a regulator to maintain those standards. Accordingly the applicant failed to discharge the burden placed upon it by s.12 of the Human Rights Act 1998 and the injunction would be refused.

PROTECTION OF SOURCES

UK breached Article 10 by ordering disclosure of document which would reveal journalistic source
Financial Times & Others v UK, ECHR, Application no. 821/03
Orders made by the High Court and Court of Appeal that various media groups should disclose a document so that a company might identify the source of an apparent leak breached those groups’ right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights. The fact that the source had deliberately spread false information in order to harm the company was a factor to consider but was not sufficient to outweigh the fundamental importance of protecting journalist sources.

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Judge Entitled To Reject Personal Injury Claim Where Eyewitness Evidence Did Not Support Claimant’s Evidence
Kerr v. Willis, CA, 4/11/09
The Court of Appeal held that the Trial Judge had been entitled to dismiss the Claimant’s claim for personal injury and loss sustained in a football match. The Claimant gave evidence that he had had sustained a catastrophic spinal injury as a result of a foul tackle by the Defendant football player, an allegation which the Defendant denied. Eyewitnesses had given evidence which did not support the Claimant’s account of the accident. The Court of Appeal held that the Judge had been entitled to take into account the eyewitness evidence, as claimants may be prone to proffer an honest but mistaken reconstruction of events. In circumstances where such eyewitness evidence did not support the Claimant’s evidence, the Judge had been entitled to reject the Claimant’s case.

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Mr Howlett was a physiotherapist working as a sole practitioner. On referral, he treated a whiplash patient. She made complaints that Mr Howlett carried out inappropriate treatment without providing adequate reasons for treating the subject of her complaint. The matter was referred to the Competence and Conduct Committee panel of the respondent Health Professions Council. At the hearing, the panel heard evidence from another person who had made a complaint against Mr Howlett. On 28 November 2008, Mr Howlett was struck off from the register of authorised physiotherapists as his fitness to practise was found to be impaired by reason of misconduct. Mr Howlett appealed. On appeal it was held that the panel needed to explicitly set out precisely why it had reached the conclusion it had in light of the evidence. It was not clear whether the panel had considered the changes to his practice or sufficient changes in his attitude or whether it was Mr Howlett’s bedside manner that was absent and the fact that he had treated others without complaint. In addition, by failing to further consider Mr Howlett’s age, the panel had fallen into error. It was held that the matter would be remitted for reconsideration on sanction.

Emmanuel v South Gloucestershire Primary Care Trust and another (QB) 11/12/09

In 1999 Mr Emmanuel joined a surgery as a partner and general practitioner. In January 2004 he was included on the first respondent care trust's medical performers list. In June 2008, the trust was informed of allegations relating to Mr Emmanuel, namely that he had engaged in an improper relationship with a former patient by whom he had fathered a child. The complaint was investigated by the trust and there followed an oral hearing after which he was suspended from the list. In March 2009, Mr Emmanuel was removed from the list on the grounds of unsuitability. He appealed this decision as the tribunal had exercised its discretion not to call the former patient to give evidence before it. It was held that as the date when the sexual relationship started had been fundamental and a contested matter of fact, the panel had made an error of law in not allowing Mr Emmanuel to cross-examine the former patient regarding the allegations.

Dunlop Haywards & Ors v Barbon Insurance Group Ltd & Ors (Comm) 19/11/09

A claim was brought against insurance brokers in respect of the renewal of an excess layer of insurance. Cover under the new policy was limited to the Claimant’s commercial property management activities and did not extend to valuation activities which are distinct activities in terms of professional indemnity insurance. The brokers’ claim that the policy should be rectified so that that cover included valuation activities failed on the evidence. Similarly the brokers’ allegation of contributory negligence failed against because the Claimant was entitled to rely on the broker to obtain the terms of insurance requested and had failed to draw attention to the limiting condition in its summary of the renewal terms. The Lloyd’s placing broker was negligent in failing to query the change from cover for the Claimant and that cover would be on equivalent terms to the expiring cover. It terms of relative responsibility the Lloyd’s broker was 20% responsible for the losses and the insurance broker 80% responsible.

Fraser v Bolt Burdon & Ors (QB) 23/11/09

The advice of Counsel to accept an offer to setztle in respect of a professional negligence arising out of a time-barred clinical negligence case was advice to be expected of a reasonably competent solicitor or barrister and was in fact very good advice.

Beresford and Anr v Solicitors Regulation Authority and Anr (QB) 2/12/09

The SRA received complaints that the two partners in a solicitors firm had each been guilty of conduct unbefitting of a solicitor as they had failed to give sufficient information to clients about costs and funding of claims generally and had accepted referrals of business in breach of the Solicitors' Introduction and Referral Code. The tribunal ordered that the partners be struck off the Roll of Solicitors. They appealed, but the appeal was dismissed as it was held that the tribunal had made findings of fact in relation to each allegation which related back to the evidence and submissions. In all the circumstances, the tribunal had been entitled to reach the conclusions which it had in respect of the allegations. The tribunal had properly found against the two partners on the allegations.

Van Dal Footwear Ltd v Ryman Ltd, CA, 3/12/09

The Appellant Tenant successfully appealed against a decision awarding damages to the respondent landlord for breach of the tenant’s repairing obligations. The judge had been wrong to include the increase in the value of the property based on a hypothetical purchaser and accordingly his calculation of damages was incorrect.

Patel & anor v Keles & anor, CA, (2009) NPC 128

The Appellant Landlord was unsuccessful in his appeal against the dismissal of his objections to grant of a new tenancy. The judge had been entitled to find that the landlord had not shown the necessary intention to occupy the premises for the purpose of Landlord and Tenant Act 1954 s.30(1)(g) as such occupation was only temporary.

Real Property

@BrianInkster If he had a clue, maybe he could get a job instead of selling snake oil twitter to lawyers incapable of twitting on their own.

I have absolutely no idea how to be a social media maven or guru or, indeed, how to ‘use’ twitter ‘properly’, let alone for personal profit.  I have no intention of learning how to do so.