Newswire 97
==========================uklawyers legal newswires
==========================
By Steve Butler and Joe Reevy
Number 97
27th April 2006
This week we are again trying a two part newswire - if you have
any comments, let us know:
mailto:smb@e-solicitors.co.uk.
Part One is "UKLawyers EXPRESS", the quicker way to see the
subject matter you want on our website. One click for each legal
subject. This is a trial and it will be easier to operate when we
get the HTML version issued in due course.
Part Two is the traditional full uklawyers legal newswire.
Everything is there just like it used to be - legal material and
light relief.
Almost everything on the newswire is now somewhere on the site.
We are still sorting things out but soon everything should be
working perfectly - all (sic) I'll need is the time to work out
the quickest way to get it all on line and into your mailboxes.
Any comments would be most welcome:
mailto:smb@e-solicitors.co.uk
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UKLawyers E X P R E S S . . . . .>>>>
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Legal Newswires on the Run
By Steve Butler and Joe Reevy
Number 4
27 April 2006
Only 14 links take you to the latest legal news.
Up to date to 27 April 2006.
Commercial and Contract
http://www.uklawyers.co.uk/cms/category/lt_commercial
Crime and Punishment
http://www.uklawyers.co.uk/cms/category/lt_crime
Employment and Discrimination
http://www.uklawyers.co.uk/cms/category/lt_employment
Family
http://www.uklawyers.co.uk/cms/category/lt_family
General
http://www.uklawyers.co.uk/cms/category/lt_general
Government
http://www.uklawyers.co.uk/cms/category/lt_government
Immigration and Nationality
http://www.uklawyers.co.uk/cms/category/lt_immigration
Intellectual Property and Computers
http://www.uklawyers.co.uk/cms/category/lt_ip
International/Europe
http://www.uklawyers.co.uk/cms/category/lt_europe
Land and Environment
http://www.uklawyers.co.uk/cms/category/lt_land
Legal Practice and Lawyers
http://www.uklawyers.co.uk/cms/category/lt_legalpractice
Litigation, Courts and Human Rights
http://www.uklawyers.co.uk/cms/category/lt_litigation
Money, Property and Tax
http://www.uklawyers.co.uk/cms/category/lt_money
Personal Injury
http://www.uklawyers.co.uk/cms/category/lt_pi
FULL uklawyers legal newswire on the website - issue 97
http://www.uklawyers.co.uk/cms/section/newswires.html
BUT also reproduced in full below.
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Contents
========
The Leading Question - Dictatorship?
Scottish law Feature
LawCare Feature
Site Of The Week - Highway Code 75 Years Old
uklawyers legal newswires
Practical Cases and Materials
Lawindexpro
Plant Survey Section
Oh! What Lovely Law!
Legal Practitioner
The Leading Question
Dictatorship?
Charles Clarke the Home Secretary was reported on Monday 24th April
as criticising the press for using words "once reserved for
tyrants to describe the legitimate policies of democratic
governments." The tenor of his complaint was that the media are
protesting because the government is democratically passing laws
which once would have been thought inappropriate in a democracy
but which he now claims to be necessary.
"Clarke attacks 'distorting' media "
BBC news item
To see one vision of the UK as it is after the passing of a number
of recent laws go to have a look at "Big Brother" a comic book
which highlights many of the laws which have been passed but which
would indeed have been thought impossible in the UK only a few
years ago.
Big Brother Comic
http://www.liberty-human-rights.org.uk/resources/big-brother.pdf
The problem though is that it is not just the strange laws which
we are having foisted upon us which indicate our gradual decline
into a dictatorship. There are other factors which have been
highlighted by events this week.
Firstly is the incompetence with which some laws are enforced
while others are pursued to ridiculous extremes. Mr Clarke has
faced a barrage of criticism over the failure of the Home Office
to deport 160 foreign criminals recommended by the courts for
deportation after their prison sentences were served or to
consider almost nine hundred others for deportation. As a result
murderers, rapists and other criminals, supposedly under
supervision by the probation service, have been able to disappear.
On the other hand Kirklees Council has spent at least 2,800 GBP in
legal costs in prosecuting a ratepayer (representing himself) over
his non-payment of a 10p parking ticket on a car parking spot
which is now free and possibly always has been.
"Parking Mad" - Daily Telegraph news story:
Motorists are targeted, while violent criminals are allowed to
roam the streets under ineffective supervision methods. Such
incompetence and inconsistency have been the hallmark of
dictatorships over the ages.
Secondly is the fact that government ministers seem to believe
that they can do whatever they like. Clarke's initial reaction
this week was apparently to offer his resignation as Home
Secretary which he obviously thought was an appropriate response
and nobody would have blamed him for that. Except that Tony Blair
said that he would not accept the resignation, so that was
alright. John Prescott has admitted to having an affair with a
secretary. David Blunkett continued to live in his "grace and
favour" accommodation for months even after resigning as Home
Secretary. The list of inappropriate behaviour is endless, but
none of them seem to worry that they are in the wrong. Hypocrisy
like this is another feature of tyranny.
The third is the constant need for propaganda and misleading
commentary. A the prime example of which was Patricia Hewitt's
repeated assertion that the NHS had just had its best year ever.
In support of this she stated that we had just had the coldest
winter for decades but the hospitals had still been able to cope
without any crisis. The last winter was not the coldest for
decades or even the coldest this century - it was relatively mild.
To say that hospitals are not in crisis at the moment is nonsense,
as the people who work in them have pointed out. And yet the
government presses on with the same propaganda regardless -
following the Nazi principle that the bigger the lie, the more
likely it is to be believed.
So the media are not perpetuating "pernicious and even dangerous
poison" as Charles Clarke would have us believe. Isn't what they
are saying just a reflection of a general malaise caused by the
many factors which reflect the fact that our democracy is changing
for the worse?
Regards
Steve Butler
Solicitor
Newswire Editor
mailto:smb@e-solicitors.co.uk
Scottish Law Feature
Some requests have been made for coverage of Scottish law. I
can't do it - I don't know a Court of Session from an Inner House
or a Pursuer from a Defender - but I've found someone who can.
Try this Anderson Strathern Parliamentary Bulletin
for "What's Happening at Holyrood?"
Monday 17 April 2006
A full colour bulletin with live links to statutory materials.
And here's a whole bunch more of updates from the same source:
http://www.andersonstrathern.co.uk/knowledge/updates/
And here is the Law Society of Scotland links page:
http://www.lawscot.org.uk/links/
If anyone wants to provide Scottish law updates for our site, I'd
be happy to talk:
smb@e-solicitors.co.uk
LawCare Feature
LawCare
http://www.lawcare.org.uk/
Information about beating stress, alcoholism, depression and
finding another career when you are fed up with the law - find 101
new careers here
A useful site which could usefully be drawn to the attention of
someone in your firm, now!
Words4Business
**************
Image:
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You want to get a newsletter out. You want to send press releases
or short articles to your local paper or a journal. You want to
get the material on your website up to date. Client work, admin
duties and a hundred other things stop you.
If you want to get it done, right now, you can: call
Words4Business.
We have what you need. It is professionally written, up-to-date,
at a price that will make you smile and provided by a company that
believes in delighting clients rather than just pleasing them . .
. which is why we are the UK's market leader.
Contact: Words4Business ( http://www.words4business.com ).
Tel: 01392 423607
Fax: 01392 214495.
E-mail mail@words4business.com
*************************************************
Courses - E-Conveyancing
Land Registry has started its e-Conveyancing push, or should I say
is pumping it up. Here is a list of up and coming seminars where
you can learn about this vital change to the conveyancer's life,
and most of them are free:
http://www.landregistry.gov.uk/info/events/
BBC Good Homes Show 18/05/2006 - 21/05/2006 Birmingham
Homebuyer and Property Show North 02/06/2006 - 04/06/2006
Manchester
Law 2006 14/06/2006 - 15/06/2006 Birmingham
JMC e-conveyancing seminar 10/05/2006 Wilmslow
PCGL: E-Conveyancing & HIPs 16/05/2006 Plymouth
PCGL: E-Conveyancing & HIPs 06/06/2006 Bristol
PCGL: E-Conveyancing & HIPs 14/06/2006 Crawley - oops, now
Eastbourne
PCGL: E-Conveyancing & HIPs 05/07/2006 Exeter
JMC e-conveyancing seminar 07/06/2006 Wetherby
or is that Leeds like the flyer I received this week says?
Check with the provider before you book. Follow the online links.
Site of the Week - Highway Code
The Highway Code is 75 years old at last. Here is a Short History
of the Highway Code
But more importantly here is the online version of the code
itself:
http://www.highwaycode.gov.uk/
uklawyers legal newswires
Many thanks for all the kind and useful comments including:
"Hi Steve,
I always look forward to the weekly wire, but the one this week
was especially good. The reason was the editorial. As a local
government man through and through, it makes a change to see
someone stating what has been obvious for years to those in the
business. I know that the social sector at times needs a hefty
boot up the backside, but I do get rather choked with all the
knocking copy that some people tend to issue (often without
thought) as a matter of course. Keep up the good work (and I do
not just mean the pro social care stuff).
Regards,
Trevor Grundy
"I write to say how well you have put the arguments about the
90 day detention proposal. I agree with every word you say"
"It's one of the few things that arrives in the email each week
that I can honestly say I make time to study."
Don't forget to take advantage of your free trial credit search
with Creditsafe.Com
Contact CreditSafe and ask for:
Gavin Tierney, Account Consultant
Gavin.tierney@creditsafe.com
2920 886500 ext: 2011
http://www.creditsafe.com
Tell him you got his name from Uklawyers.
Many thanks to those who have asked their colleagues to subscribe
to the wire. Why not join them? Please ask three friends to
subscribe to this today - just get them to send an e-mail with
their name to mailto:smb@e-solicitors.co.uk with 'subscribe' in
the subject line and we'll do the rest.
PRACTICAL CASES AND MATERIALS
Commercial and Contract
Company Share Option Plans - Guidance for EmployersInland Revenue Guide
19 April 2006
http://www.hmrc.gov.uk/shareschemes/csop_general.htm
Revised guidance for employers on Company Share Option Plans has
now been published. This replaces booklets IR101 and IR102 which
have been withdrawn.
Crime and Punishment
Green Light for National Police DatabaseHome Office Press Release
19 April 2006
A £367m plan to develop a national police database that will
link up police information across England and Wales has been
finalised by the Home Office. The IMPACT Programme's plans pave
the way for a new technology-based system designed to connect
information held locally and nationally by police systems, as well
as on the Police National Computer.
Consensual Rape by 15 Year Old - Human Rights Implications
R v G (Secretary of State for the Home Department intervening)
[2006] EWCA Crim 821
12 April 2006
Daily Law Notes Report Summary
Legislation creating an absolute offence could subject a defendant
to conviction in circumstances where he had done nothing
blameworthy and prosecution for such an offence might infringe the
defendant’s human rights. However, the legislation would not
render the trial under which it was enforced unfair nor would it
infringe the presumption of innocence.
Control Orders and Human Rights
Secretary of State for the Home Department v MB
QBD
12 April 2006
Daily Law Notes Report Summary
The procedures in s 3 of the Prevention of Terrorism Act 2005
relating to the supervision by the court of non-derogating control
orders made by the Secretary of State for the Home Department were
incompatible with the respondent’s right to a fair hearing under
art 6(1) of the European Convention on Human Rights.
Employment and Discrimination
The following items are reproduced with the kind permissionof Daniel Barnett, barrister (http://www.danielbarnett.co.uk):
Tribunal Bias
21 April 2006
This case is an example of a tribunal decision being set aside
because of apparent bias (i.e. where the fair minded and informed
observer present at the hearing, not being a party or associated
with a party, having considered the facts, would consider that
there was a real possibility that the tribunal was biased).
An employment tribunal chair, at the outset of a case, said to the
employer's representative (who was not a legal representative)
that it "may be in some difficulties in maintaining that the
claimant was dismissed by reason of her conduct as it appeared
from the [documents] lodged by the [employer] that there was no
indication that the reason for the [employee's] dismissal was her
conduct."
As a result of that indication, the employer conceded that the
dismissal was unfair (a position it had previously challenged). It
then appealed.
The EAT (Lady Smith presiding) noted that the representative, also
at the EAT, "was anxious, not confident and it was easy to
envisage that he would have been vulnerable to pressure".
Against that impression of the representative, and the fact that
the chairman had not expressly said "This is only a preliminary
view and we are open to persuasion", the EAT considered the test
for apparent bias was made out. Accordingly it set aside the
finding of unfair dismissal and allowed the employer to withdraw
its concession.
Chris Project v Hutt
BAILII Judgment
TUPE and the Vanishing Dismissal
20 April 2006
The EAT (HHJ Peter Clark sitting alone) has held that TUPE 1981
operates so that, when employees are dismissed for misconduct
before a TUPE transfer, but are reinstated after the date of
transfer by the transferor, the dismissal 'vanishes' and the
employees are deemed to have been transferred under TUPE.
In other words, despite having been dismissed at the date of the
transfer, they are deemed (if the appeal is successful) to have
been employed "immediately before" the transfer.
In reaching that conclusion, the EAT relied on previous decisions
of the EAT and Court of Appeal where a dismissal was held to have
'vanished' following a successful appeal, for example for the
purpose of deciding whether an employee had continuity of
employment for claiming unfair dismissal.
G4S Justice Services v Anstey & Simpson
BAILII Judgment
Bank Holiday Mondays / Part-Time Workers
19 April 2006
The EAT has considered, in a case with slightly unusual facts, the
difficult question of whether part-time employees who do not work
on Mondays are entitled to a pro rata apportionment of extra time
off in respect of Bank Holidays which always fall on a Monday.
Four of the UK's eight bank holidays always fall on Monday (Easter
Monday, May Day, Spring Bank Holiday and August Bank Holiday). One
is always on a Friday (Good Friday) and the other three vary. For
some time, there has been debate about whether the Part Time
Workers (Prevention of Less Favourable Treatment) Regulation 2000
prohibit an employer from allowing a full-time worker time off for
Monday Bank Holidays, when part-timers who do not work Mondays do
not receive time off.
The Claimant in this case worked Wednesdays, Thursdays and
Fridays. The employer, Capita Business Services, operates seven
days a week. The tribunal found that the part-time Claimant
suffered a detriment compared with full-time workers, in that he
did not receive the benefit of Monday bank holidays. However, it
found the reason was not his status as a part-time worker, but
simply because he did not work Mondays. Accordingly his claim was
dismissed.
The Employment Appeal Tribunal upheld the tribunal's decision. It
placed considerable emphasis on the fact that the Respondent
operated a seven-day a week business, and that full-timers who
worked five days a week excluding Mondays also did not receive
time off for those Bank Holidays.
This decision provides some support for employers who do not give
part-time workers additional pro rata time off in respect of bank
holidays. However:
* it remains to be seen whether the same approach would be taken
with a five-day (rather than seven-day) a week business, where ALL
full timers receive the benefit of bank holidays;
* the case did not deal with justification (as it was not
necessary to do so). It is strongly arguable that an employer
would be justified in restricting the benefit of time off for Bank
Holidays to people who actually work on those days, even if doing
so has a detrimental impact on part-time workers.
McMenemy v Capita Business Services Ltd
BAILII Judgment
Statutory Dismissal Procedures
Reversal of Polkey
16 April 2006
Last week, [see below], I reported Alexander & Hatherley v Bridgen
Enterprises, in which the EAT (Elias P. presiding) considered
s98A(2) of the Employment Rights Act 1996. This section, which
partially reverses Polkey, provides:
"98A(2) Subject to subsection (1) [compliance with the statutory
minimum dismissal procedure], failure by an employer to follow a
procedure in relation to the dismissal of an employee shall not be
regarded for the purposes of section 98(4)(a) as by itself making
the employer's action unreasonable if he shows that he would have
decided to dismiss the employee if he had followed the procedure."
In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that
s98A(2) enables employers to avoid a finding of unfair dismissal
in respect of any breaches of what might otherwise be regarded as
a 'fair' procedure, when the employer could establish that the
'fair' procedure would not have saved the employee from dismissal.
On the same day last week, another division of the EAT (HHJ
McMullen presiding) handed down a decision holding almost
precisely the opposite - see Mason v Ward End Primary School.
HHJ McMullen holds that s98A(2) only rescues employers when the
procedural breach amounts to breach of a formal procedure - either
one that is written down, or one which has arisen through custom
and practice. However, he considers it does not extend to more
general breaches of a 'fair' procedure, such as those envisaged by
the Acas Code of Practice.
In reaching this decision, HHJ McMullen repeats his views (far
more briefly expressed) in Pudney v Network Rail last month, which
were regarded by Elias P. at para. 56 of Alexander & Hatherley v
Bridgen Enterprises as wrong. However, in this more recent case,
HHJ McMullen has set out full reasoning for his conclusion, rather
than just asserted a principle.
Thus we are left with two inconsistent - and both, well-reasoned -
decisions of the EAT on a very important point of interpretation
of s98A(2). As I understand it, neither case is being appealed to
the Court of Appeal.
Mason v Ward End Primary School
EAT Judgment
Statutory Dismissal Procedures
13 April 2006
The EAT (Elias P. presiding) has handed down an important decision
on the impact of the statutory dismissal procedures. It is
authority for the proposition that:
* in a redundancy situation, the statutory dismissal procedure
requires an employer to tell an employee of the reason for the
redundancy, the selection criteria, his score, but NOT the
threshold (ie the 'break' score beyond which his job is safe) or
the scores of other employees. Failure to provide this information
renders the dismissal automatically unfair and leads to an
increase in the compensatory award
* s98A(2), which partially reverses Polkey v AE Dayton Services,
has a wide-ranging effect and cannot be narrowly construed to
rescue only employers who fail to comply with formal written
procedures over and above the statutory minimum.
The employer was making nine compulsory redundancies. It used a
matrix system to provisionally select the employees, and held two
meetings with them. At the first meeting, they were told the
selection criteria but not their personal scores. It was only at
the end of the second meeting, after the decision to dismiss had
ben taken, that they were told their scores. An appeal was
offered, but was held by the employment tribunal to be defective.
The Employment Appeal Tribunal held that the statutory dismissal
procedure:
* does not require detailed information to be given in writing at
step 1. It is only necessary to set out the reason for the
dismissal in broad terms, such as 'redundancy', or 'incapability'.
In a conduct case, this will be identifying the nature of the
misconduct such as 'fighting', 'insubordination' or 'dishonesty'
(para. 38)
* at step 2, the employer must inform the employee of the basis
for the grounds for dismissal - but this need not be in writing.
It must, though, give the employee sufficient detail of the case
against him to allow him to properly put his side of the story
(para. 39)
* in redundancy dismissals, where a matrix system is used, this
requires that the employee be told the selection criteria (para.
43) and the scores he has achieved (para. 45). It does not require
that the employee be told the threshold score he must achieve to
remain in employment, or the scores of other employees (para 46).
Accordingly, because the employer had not provided the individual
scores until the decision to dismiss had been taken, it was in
breach of the statutory dismissal procedure and the dismissals
were automatically unfair.
The Employment Appeal Tribunal went on to deal with the employer's
alternative argument that a lack of fairness under s98(4) did not
matter, because (assuming the employer had complied with the
statutory minimum procedure - which the EAT found it had not) the
effect of s98A(2) is to provide an escape route for employers who
comply with the statutory minimum procedure but make other
procedural errors, provided that the employer can establish that
complying with that procedure would still have resulted in
dismissal. The EAT held:
* it is inappropriate to draw a distinction between 'procedural'
and 'subtsantive' defects in the employer's actions (paras 55-56)
* if an employer fails to comply with any procedure which a
tribunal feels it ought, in fairness, to have carried out, it is
able to avail itself of the new statutory defence in s98A(2). This
is not limited to formal procedures, whether written down or not.
If the employer's actions are fundamental, then it is likely there
will be a breach of the statutory dismissal procedures anyway, in
which case s98A(2) does not assist (paras. 56-57)
* thus, where the statutory dismissal procedures are followed:
o any procedural failings where the chance of dismissal (had the
procedures been complied with) is more than 50% will be ignored,
and the dismissal will be fair; and,
o any procedural failings where the chance of dismissal (had the
procedures been complied with) is less than 50% will continue to
be governed by Polkey, so that the dismissal will be unfair but
compensation will be reduced to reflect the chance of dismissal
(obviously, by less than 50%) (para. 58)
I understand that a different division of the EAT handed down a
decision yesterday reaching precisely the opposite conclusion on
the scope of s98A(2), i.e. that it only applied to breaches of
formal procedures but not to more general concepts of unfairness
(such as failure to comply with the Acas code). I will send out a
further bulletin on this point when this other case appears on the
EAT website.
Alexander & Hatherley v Bridgen Enterprises
EAT Judgment
Minimum Wage - Gas & Electricity
13 April 2006
The EAT (Elias P.) has handed down an important decision dealing
with the national minimum wage legislation.
The employer (part of the Butlins group) supplied accommodation to
employees working at holiday camps. As part of the arrangements, the
employees consented to a deduction of 6 GBP per fortnight as a
contribution towards the cost of gas and electricity.
If this 6 GBP per fortnight could be counted as part of the
employees' wages, then the employer complied with the minimum wage
legislation. However, if it had to be deducted when calculating the
wage paid, then the employees received less than the minimum wage.
In an extremely complex judgment (due to the convoluted provisions
of the National Minimum Wages Regulations 1999), the EAT held that
the payment for gas and electricity was part of the provision of
living accommodation (in respect of which the employer had already
taken advantage of the maximum allowance) and, in the alternative,
that the deduction was for the employer's own use and benefit.
Accordingly, the employer could not count the 6 GBP per fortnight
towards the employees' wages, and was thus in breach of the national
minimum wage legislation.
For those litigating or advising on minimum wage issues, this
judgment is a compulsory read. For others, steer well clear
without the proverbial wet towel.
HM Revenue & Customs v Leisure Employment Services Ltd
EAT Judgment
Law Society Handbook on Employment Law
by Daniel Barnett and Henry Scrope
Third edition just published
£49.95
Click here for more details
http://www.danielbarnett.co.uk/publications_lawsoc.htm
To subscribe to Daniel's Newswire, go to his smart new site:
http://www.danielbarnett.co.uk/bulletins.htm
Daniel Barnett Archive Now Available
------------------------------------
By arrangement with emplaw, an archive for Daniel's bulletins is
now available: http://www.emplaw.co.uk.
Law Society Update:
EU Legislation on Employment
----------------------------
Newsletter
1 April 2006
One of the fundamental principles of the European Community is the
free movement of workers enshrined in Article 39 of the EC Treaty.
As well as establishing this principle, the EC Treaty deals with
social provisions on differing aspects of working conditions
within the European Community. Legislation in this area also aims
to encourage co-operation between Member States on their
employment policies and further social and economic cohesion. At
the Lisbon Summit in 2000, Member States set out ways to make the
Community "the most competitive and dynamic knowledgebased economy
in the world capable of sustainable economic growth with more and
better jobs and greater social cohesion".
And here is 24 pages of text to tell you how this is being
achieved.
General
Protecting Vulnerable Adults From CrimeHome Office Press Release
24 April 2006
A booklet setting out how vulnerable adults and those with
learning disabilities can protect themselves from crime is
published today by the Home Office. The 'Keep Safe' booklet
contains advice on how to keep safe when at home and when outside
alone, including tips on using public transport and cash machines.
It also deals with bullying, attacks and mugging, which often go
unreported to the police. There is also advice on where to go for
help and how to report incidents to the police.
Medical Treatment - Unlicensed Drug
R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392
CA
12 April 2006
Daily Law Notes Report Summary
The policy of an NHS primary care trust to fund a particular drug
treatment unlicensed for early stage breast cancer only where
exceptional personal or clinical circumstances could be shown
irrespective of cost implications was irrational and unlawful.
Government
Safeguarding Your Identity: IPS Sets Out Ten Year PlansHome Office Press Release
21 April 2006
The new Identity and Passport Service [we blinked and ID cards
arrived] (IPS) has 'hit the ground running', publishing plans
today for a major programme of anti-fraud projects that will
transform people's ability to confirm identity and protect their
personal details from criminals.
Help them to run - apply for the renewal of your passport now:
http://www.renewforfreedom.org/NO2ID_Factsheet1.pdf
Immigration and Nationality
United Kingdom Immigration Control - South African PassportsHome Office Press Release
19 April 2006
The UK will stop accepting South African temporary passports with
effect from today. This decision has been taken due to concerns
over the effectiveness of the South African passport issuing
process and the impact that has on our immigration controls.
Asylum - Definition of Refugee - Need for
Protection not Hospitality
AA v Secretary of State for the Home Department;
LK v Same [2006] EWCA Civ 401
CA
12 April 2006
Daily Law Notes Report Summary
It was critical to the definition of a "refugee", and indeed to
the scope of the international protection which the Refugee
Convention required to be afforded, that a well-founded fear of
persecution should be the reason why a candidate was outside the
country of his nationality. That was plain from the very purpose
of the Convention, which was to impose on state parties a duty to
protect persons within their borders who could not return to their
country of nationality for fear of being persecuted there. It was
not to impose a duty of hospitality to persons who, if they chose,
could return home with no risk whatever of being persecuted.
Sham Marriages - Incompatible Legislation
R (on the application of Baiai and others) v Secretary of State
for the Home Department
QBD
10 April 2006
BAILII Judgment
The regime introduced by s 19 of the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004, to prevent sham marriages
was incompatible with arts 12 and 14 of the European Convention on
Human Rights because it had affected the rights of many more
people than would be necessary to achieve the legislative purpose
and that it constituted direct discrimination on the grounds of
religion and nationality.
Intellectual Property and Computers
The Intellectual Property (Enforcement, etc.) Regulations 2006SI 2006/1028
Coming into force 29 April 2006
Explanatory Memorandum
These Regulations implement the Directive of the European
Parliament and the Council on the enforcement on intellectual
property rights (Directive 2004/48/EC) ("the Enforcement
Directive") and make some amendments to further implement the
Agreement establishing the World Trade Organisation (including the
Agreement on Trade-Related Aspects of Intellectual Property
Rights), the Directive of the European Parliament and of the
Council on the legal protection of designs (Directive 98/71/EC),
Council Regulation (EC) No. 6/2002 on Community designs) and the
European Economic Area Agreement.
International/Europe
Brussels Agenda - April 2006Law Society Publication
7 April 2006
The Law Society's monthly publication with the latest EU news
Land and Environment
Government Strengthens Regulations Covering EEANationals and Access to Social Housing
ODPM Press Release
18 April 2006
The new amending regulations come into force on 20 April, and will
ensure that nationals from the European Economic Area (EEA) who do
not have a right to reside in the UK are not eligible for council
housing and homelessness assistance in England.
Litigation, Courts and Human Rights
Limitation Periods - Sexual Abuse - Assault and NegligenceA v Hoare;
H v Suffolk County Council;
X and Y v Wandsworth London Borough Council [2006] EWCA Civ 395
CA
12 April 2006
Daily Law Notes Report Summary
Claims arising out of intentional sexual assaults were subject to
a fixed six-year limitation period from the date of the assaults,
or from the claimants' majority, if later. The Human Rights Act
1998, which did not come into effect until after the events
complained of, could not be used retrospectively so as to deprive
the various defendants of their accrued rights to plead the fixed
six-year limitation period provided for by s 2 of the Limitation
Act 1980.
Freezing Order - Enforcement Abroad
Dadourian Group International Inc and others v Simms and others
[2006] EWCA Civ 399
CA
11 April 2006
Daily Law Notes Report Summary
Although the court had a discretion as to whether to grant
permission to an applicant to enforce a worldwide freezing order
abroad if it considered it just to do so, there was a range of
factors that the court was likely to need to consider for that
purpose. The Court of Appeal so stated, when setting out eight
relevant guidelines, before dismissing an appeal.
Money, Property and Tax
Revised Leaflet: IR14/15(CIS)Inland Revenue Guidance
20 April 2006
IR14/15(CIS) explains the arrangements for the taxation of certain
payments made by contractors to subcontractors in the construction
industry.
Personal Injury
Home Secretary Outlines Changes to System forCompensating Miscarriages of Justice
Home Office Press Release
19 April 2006
The changes, some with immediate effect and others requiring
primary legislation, aim to ensure that compensation payments paid
by the state are proportionate to the level of injustice
experienced by applicants, bringing them more into line with
amounts paid to victims of crime. And . . .to save 5 million GBP!
Cases Generally
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Now with 106,723 cases indexed (with over 810 added in the
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See what you think to these:
Prisons - Torts - Other
-----------------------
Watkins -v- Home Office and others
[2006] UKHL 17
HL
29 March 2006
The claimant complained of misfeasance in public office by the
prisons for having opened and read protected correspondence whilst
he was in prison. The respondent argued that he had suffered no
loss. The judge had found that bad faith was established in three
prison officers. In one case the officer opened the letter in
front of the claimant despite his protests and invited him to
'tell it to John Major'. Held: The claim failed. The House faced
two conflicting principles; that no action should lie without
proof of damage and that deliberate abuse of power should be
restrained. The case law clearly established however that no
action lay in the absence of proof of material damage. If the law
was to be reformed it should be done after a review by the Law
Commission.
Case Map:
This case cites 39 case(s):
Judgment Links: Bailii
Child Support - Discrimination - Human Rights
Secretary of State for Work and Pensions -v- M -
[2006] UKHL 11
HL
08 March 2006
The respondent's child lived with the estranged father for most of
each week. She was obliged to contribute child support. She now
lived with another woman, and complained that because her
relationship was homosexual, she had been asked to pay more than
someone in a heterosexual relationship. Held: The claim failed.
The regulations had now been updated by the 2004 Act. In 1991 the
discrimination was in accordance with the views and standards
current at the time. As to the claim for infringement of her right
to respect for family life: 'Ms M's case on respect for private
life also fails, for similar reasons. There has been no improper
intrusion on her private life. She has not been criminalised,
threatened or humiliated. The Tribunal respectfully recorded that
she and her partner 'were living in a very close, loving and
monogamous relationship.' Her complaint is that the state has
calculated her liability to contribute to her children's
maintenance under a formula which is different from (and on the
particular facts of her case, more onerous than) that which would
have been used if she had been in a heterosexual relationship. The
link with respect for her private life is in my view very tenuous
indeed. ' and 'the CSA is concerned as an official intermediary,
but it is enforcing a personal obligation of the absent parent. It
is no more expropriating property than . . . when the civil
justice system enforces a private contract by converting a
contract debt into a judgment debt which can be recovered by the
process of execution. '
Case Map:
This case cites 27 case(s):
Judgment Links: Bailii:
No other research site is so powerful for such a low price. David
is happy to provide subscribers to UKlawyers with a brief guest
account to test the service.
Ring 01484 717380 or 0773 187 4426 to subscribe or enquire.
"More Cases, More Courts, More Years, More Use"
Go to:
David Swarbrick's lawindexpro - http://www.lawindexpro.co.uk/.
Plant Survey Section
The Botanical Society of the British Isles
(http://www.bsbi.org.uk/) and Plantlife
(http://www.plantlife.org.uk/) are about to publish a joint survey
of UK flora entitled "Change in the British Flora 1987-2004." The
title speaks for itself but the report is based on years of
research and recording. Warmer climate plants are sneaking up
North! Why not join in future research?
"The Botanical Society of the British Isles is for everyone who is
interested in the flora of Britain and Ireland. The society traces
its origins back to 1836, when it was founded as the Botanical
Society of London. From its earliest days it has welcomed both
professional and amateur members, and it remains the biggest and
most active organisation devoted to the study of botany in the
British Isles."
"Plantlife is the only charity working solely to protect Britain's
wild flowers and plants, fungi and lichens, and the habitats in
which they are found. We were established in 1989 after a meeting
of conservationists and botanists recognised that a new
organisation, an 'RSPB for plants', was needed to champion wild
plants which were seen as slipping through the conservation net."
OH! What Lovely Law!
The Now ShowListen to the show as broadcast on 21 April and hear (amongst
other things) a witty ditty about how we are all in service
industries now, not manufacturing, and how lawyers all get jobs
because their father's were in the same profession!
http://www.bbc.co.uk/radio4/comedy/nowshow.shtml
You can listen or download and save and even have a podcast!
Such a good programme, despite the occasional lapse in good taste.
Legal Practitioner
More good stuff from Consilio Magazine, edited by Mike Semple
Piggot
Land Law
"Clogs Are Not Just Found on the Feet of Clog Dancers" by Mike
Harwood
http://www.spr-consilio.com/artland10.htm
I am talking about clogs on a mortgagor's equity of redemption.
And I want to talk about the recent case of Warnborough Ltd v
Garmite Ltd [2006] EWCH 10 (CH). At one time (up to the middle of
the nineteenth century) the rule was I think that any clog or
fetter on the equity of redemption would be void in equity . . .
Litigation
"If you have a court-door settlement, and if costs are the only
stumbling block, can the parties agree to leave the question of
costs alone to the judge?" by Dr John Birchall
http://www.spr-consilio.com/art112.htm
And if they do, how should the judge decide? What can you tell the
client who needs advice about the likely outcome of agreeing with
the other side to leave costs to the judge?
Any feedback is welcome, positive or not - we do listen and learn.
Regards
Steve
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