Ian Gray v (1) Secretary of State for Justice (2) Parole Board: QBD (Admin) (Mr Justice Burnett): 11 January 2010 Delay – Detention – Parole – Prisoners’ rights The claimant prisoner (G) applied for judicial review of the actions and decisions of the first defendant secretary of state and the second defendant Parole Board in connection with the process of his continued detention. G had been convicted of two sexual offences and, in February 2007, a sentence of detention for public protection (DPP) was imposed, with a specified minimum term of two years. The impact of that specification was that G had to serve at least two years, his release thereafter being conditional upon an assessment by the board that it was safe to release him. As a result of time served while on remand, G’s earliest release date was in October 2008. G’s representatives had sent the board a dossier in May 2008, ahead of an anticipated parole hearing in September 2008. The board did not, however, consider G’s case until February 2009, when it declined to order his release or recommend that he be transferred to an open establishment. In the course of that hearing, the secretary of state had stated that the test to be applied by the board in satisfying itself that it was no longer necessary for the protection of the public that the prisoner should be confined, was whether the lifer’s level of risk to life and limb of others was considered to be more than minimal. G was subsequently informed by the secretary of state that his next board meeting would take place in August 2010. G contended that (1) the delay in convening the board gave rise to a violation of article 5(4) of the European Convention on Human Rights 1950, such as to entitle him to a declaration and other such just satisfaction pursuant to section 8 of the Human Rights Act 1998 as was appropriate; (2) the period of time between the board’s decision in February 2009 and the date of the next hearing in August 2010 represented further unlawful delay in breach of article 5(4); (3) the secretary of state’s directions to the board were unlawful and irrational because they required the board to apply the same test to the release of a prisoner or detainee serving a sentence of imprisonment for public protection as for a life sentence; (4) the secretary of state had acted unlawfully in failing to produce guidance on the approach to transfer to open conditions concerned explicitly with short tariff DPP prisoners, as opposed to life prisoners, as had the board in failing to generate its own guidance. Held: (1) Article 5(4) imposed an obligation on the secretary of state to provide a speedy and meaningful review of the legality of detention of a person subject to an indeterminate sentence for public protection. It was not a strict requirement of article 5(4) that a board hearing should take place before the expiry of a minimum term, although it was the aim of the secretary of state and the board to achieve that goal, R (on the application of Noorkoiv) v Secretary of State for the Home Department (No2) [2002] EWCA Civ 770, [2002] 1 WLR 3284 followed. Whether there had been a speedy determination was fact specific in any given case, R (on the application of Cawley) v Parole Board [2007] EWHC 2649 (Admin) applied. In the present case, the board had not acted with reasonable despatch. There was no active case management before September 2008 and no explanation for that inaction. G was, accordingly, entitled to a declaration that the board’s failure to provide a hearing until February 2009 gave rise to a breach of article 5(4) of the convention. It was, however, not appropriate to make any monetary award, given that G would not have been released had a timely hearing occurred, Wells v Parole Board [2009] UKHL 22, [2009] 2 WLR 1149 followed. (2) Article 5(4) required that a detained person had to be able to challenge his detention at reasonable intervals, and it was a matter for the court to determine whether the proposed interval was a reasonable one. In the present case, the next hearing had been set for August 2010 to enable G to do the work necessary to reduce risk and thus achieve release, and there was no hint of the timetable being set for the convenience of the secretary of state or otherwise because of a lack of resources. In those circumstances, the decision to set an interval of 18 months did not bring with it a breach of article 5(4). (3) The impact of the directions in G’s case was wholly academic because there was no question of his release. In any event, the board had not been diverted from considering the real issue in the case, namely the risk of sexual offending upon which it had focused. The third ground in G’s challenge had, accordingly, to fail. (4) The challenges to the failure of the secretary of state to issue fresh directions on the transfer to open conditions or the board itself to circulate guidance were unarguable. There was no question of such a recommendation in G’s case, and the secretary of state had not been obliged to issue directions of the sort envisaged by G. Application granted in part. Philip Rule (instructed by Mark Williams Associates) for the claimant; Simon Murray and Matthew Slater (instructed by the Treasury Solicitor) for the first and second defendants respectively.
Human rights
September 30, 2020
The recession has caused an ‘explosion’ in the number of cohabiting couples seeking advice on relationship breakdown, according to family lawyers who have called for the ‘complex’ laws applied to them to be updated. Vanessa Lloyd Platt, founder of London firm Lloyd Platt & Co, said: ‘We have seen an explosion in the number of cohabitees coming to us to deal with the breakdown of their relationships, with cases up 15% over the last three months.’ She said part of the rise is because fewer people are marrying, but she attributed the recent surge to the impact of the recession. ‘Struggling relationships are ending sooner than they otherwise might, due to the economic climate, particularly where one partner owns the home in which they live,’ said Lloyd Platt. She said: ‘People need to release the capital from their homes in order to live, especially if they have been made redundant or face the prospect of losing their job.’ Lloyd Platt said the law in relation to cohabitees is ‘complex’ and disadvantages women who may have given up a career to take care of children, and should be brought in line with the law applied to married people and same sex couples in civil partnerships. Gianna Lisiecki, acting head of the family team at Manchester firm JMW, said she had seen a definite increase in the number of cohabitation disputes in recent months. ‘People are under financial strain, which can place pressure on their relationship and as a consequence causes some relationships to breakdown,’ said Lisiecki. But Caroline Falkus, partner and collaborative lawyer at north London firm Bross Bennett, said the effect of the recession will not be felt by most couples until next year when the public sector spending cuts start to bite. She said cohabiting clients are suffering because of the outdated law that is applied to them. ‘Relying on ancient trust law to unpick the threads of a loving relationship over many years is clearly ridiculous,’ she said, and called for civil partnerships to be extended to heterosexual couples. See Why civil partnerships for heterosexual couples could be a good idea.
The claimant company allegedly contracted with the defendant company to sell to the defendant 5,000 MT of sunflower seeds CIF Seville for shipment between 15 September and 15 October 2008. The contract provided for English law and contained an arbitration agreement providing for London FOSFA arbitration and making it a breach of contract to start legal proceedings elsewhere. It was the defendant’s case that there had been no concluded contract and it issued proceedings in Spain in October 2008. On 6 July 2009, the Spanish court dismissed an application made by the claimant for a stay in favour of the FOSFA arbitration which it had initiated on 16 December 2008. In September 2010, the Spanish court dismissed the defendant’s action. The defendant appealed. In due course, an award was issued by the FOSFA tribunal in the claimant’s favour. The claimant applied for permission to enforce the arbitration award in the same manner as a judgment and to enter judgment in the terms of the award pursuant to s 66 of the Arbitration Act 1996 (the Act). Section 66 of the Act so far as material provided that an award made by a tribunal pursuant to an arbitration agreement might by leave of the court be enforced in the same manner as a judgment and judgment could be entered in the terms of the award. Under s 66(3) of the Act, leave to enforce the award would not be given where the person against whom it was to be enforced showed that the tribunal lacked substantive jurisdiction to make the award. The defendant’s position was that the award was a nulity because no contract had been concluded and that ultimately the tribunal had lacked the jurisdiction to make the award. It was common ground between the parties that the question of whether the defendant had lost the right to raise objections to enforcement under s 66(3) depended on whether or not the defendant had taken part in the arbitration proceedings. If it had not done so, then its rights under s 66(3) would have been preserved. If it had done so then its right to rely on s 66(3) would have been lost (by reason of s 73(2) of the Act). The issues were, inter alia, first whether on the evidence the defendant had participated in the arbitration proceedings. In that regard, the claimant submitted that the defendant’s participation was reflected by the fact that tribunal had included a section in its award entitled ‘respondent’s submissions’ and had made ‘findings’ in respect of such submissions. The defendant submitted that any ‘submissions’ had in fact been an objection to the commencement of the atbitration proceedings and a preliminary protest regarding the jurisdiction of the tribunal and could not be read as a submission by the defendant to the tribunal’s jurisdiction on kompetenz-kompetenz grounds. Secondly whether the s 66 application should be dismissed or stayed. In that regard, the defendant submitted, inter alia, that the s 66 application should be dismissed because the evidence showed that there was real ground for doubting the validity of the award. It was the defendant’s case that s 66 of the Act was a summary procedure that was not available where ‘there is a real ground for doubting the validity of the award’. It submitted that the evidence before the court clearly established a real basis for doubting that any contract was concluded. The claimant submitted that in the circumstances the s 66 proceedings should be dismissed and the claimant left, if so advised, to bring an action on the award. The claimant accepted that the defendant had sufficiently shown there were grounds for doubting the validity of the award. However, it submitted that that was an issue which could and should be dealt with in the context of the instant proceedings and that there was no warrant for requiring it effectively to start all over again. The court ruled: (1) Case law drew a distinction between protesting that the arbitration tribunal had no jurisdiction, asserting that the issue should be decided by some other court or tribunal, and asking the tribunal to consider the issue of jurisdiction. In the latter case, the party was likely to be held to have invoked the jurisdiction of the tribunal (see [23] of the judgment). In the instant case, the correspondence had done not more than make it clear that the defendant was protesting the jurisdiction of the tribunal and asserting that they should decline to exercise any jurisdiction that they might have pending determination of the jurisdiction issue by the Spanish court. It had never recognised that the tribunal had jurisdiction, still less had it invited them to consider or determine the issue of jurisdiction. The letters had been directed at explaining why the defendant was not going to participate in the arbitration. They had not been inviting any jurisdiction to be exercised. They had been asserting that any jurisdiction the tribunal might have should not be exercised at that stage. Inviting the tribunal to decline jurisdiction had not in itself been an invocation of its jurisdiction (see [29], [30] of the judgment). The claimant’s argument that the defendant had lost the right to object to the jurisdiction of the arbitration under s 66(3) of the Act would be rejected (see [31] of the judgment). Caparo Group Ltd v Fagor Arrasate Sociedad [2000] ADLRJ 254 considered; Law Debenture Trust Corpn plc v Elektrim Finance BV [2005] All ER (D) 08 (Jul) considered; Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH [2010] All ER (D) 106 (Oct) considered. (2) The court had the power to direct that there be a determination of disputed issues of fact under s 66 of the Act and there was no necessity for that to be done by way of action on the award. In cases of complexity it would still be appropriate for the proceedings to continue as if it were an action, however, in relatively straightforward cases of fact such as were commonly determined on an application under s 67 of the Act. It was appropriate for the issues to be dealt with under s 66 and for appropriate directions to be given under CPR 62.7 (see [48] of the judgment). The proviso in s 66(3) of the Act, applied where the person resisting enforcement ‘showed’ that the tribunal had lacked jurisdiction. That indicated proof of that fact rather than merely that it involved a triable issue. It also indicated that that was a matter which could be determined in the context of the s 66 procedure. By contrast in an action on an award, it was incumbent on the claimant to ‘plead and prove both the arbitration agreement and the award’ and to establish that the dispute was within the terms of the submission and that the arbitrator was duly appointed. If the party who had obtained an award could not rely on s 66 and was compelled to start an action on the award the burden of proof would accordingly be the reverse of that contemplated under s 66(3) and he would therefore lose that benefit, a benefit which the Act conferred on him. In effect, the party who had obtained an award had the benefit of a presumption of validity and it was for the party resisting recognition to prove otherwise. Section 66 conferred that benefit but one which would be lost if an action on the award was the only means by which disputed issues of validity could be resolved (see [41]-[43] of the judgment). The defendant’s case that the s 66 application should be dismissed or stayed would be rejected, however, the defendant had not lost the right to challenge jurisdiction and directions for that determination needed to be given (see [66] of the judgment). Sovarex SA v Romero Alvarez SA [2011] All ER (D) 225 (Jun), [2011] EWHC 1661 (Comm) Award – Enforcement – Action to enforce award David Lewis (instructed by Gateley LLP) for the claimant. David Semark (instructed by Ashfords LLP) for the defendant.
The government plans to introduce a charge for taking a case to an employment tribunal, which litigants will only get back if they win. Chancellor George Osborne told the Conservative Party conference in Manchester today that the move will reduce the risk to small businesses of hiring new people. It was imperative ‘to respect the right of those who have spent their whole lives building a small business not to see that achievement destroyed by a vexatious appeal to an employment tribunal’, he told delegates. The government will also double to two years the amount of time someone must be employed before they can pursue an unfair dismissal claim. The new charging policy is expected to apply from April 2013. The government will consult on the level and structure of the fees. It has been reported that workers are likely to face a £150 to £250 charge and a further £1,000 for starting a hearing. The sums are expected to be higher for compensation claims exceeding £30,000.
The Insolvency Act 1986, so far as material, provides: ‘105: A reference in this schedule to something done by the directors of a company includes a reference to the same thing done by a majority of the directors of a company.’ The Insolvency Rules 1986, SI 1986/1925, provide, so far as material: ‘2.2(1): There may be prepared, with a view to its being exhibited to the affidavit in support of the petition, a report by an independent person to the effect that the appointment of an administrator for the company is expedient. ‘(2) The report may be by the person proposed as administrator, or by any other person having adequate knowledge of the company’s affairs, not being a director, secretary, manager, member, or employee of the company. (3) The report shall specify the purposes which, in the opinion of the person preparing it, may be achieved for the company by the making of an administration order, being purposes particularly specified in section 8(3).’ M Ltd (the company) was incorporated in January 2010 to carry on gambling businesses. RS Ltd (RS) was its only shareholder and, at that stage, M was its only director. Subsequently, H and C were made additional directors. In order lawfully to carry on a gambling business, it was necessary to have both an operating licence granted by the Gambling Commission and a premises licence granted by the local authority in respect of each place where the gambling activity was to be carried on. Under sections 159 and 188 of the Gambling Act 2005, a premises licence might only be granted or transferred to a holder of an operating licence. In October 2010, the company obtained an operating licence and entered into negotiations with a number of companies then in administration (collectively called A Ltd), for the acquisition of their gambling businesses. It expected to obtain finance from a third party. In the event, such finance was not forthcoming and the assets of A Ltd were acquired by B Ltd (B), which had been incorporated on 17 November 2010 and had been effectively controlled by an individual, T. On 30 November or 1 December, three agreements were concluded, namely: (i) an asset sale agreement made between A and B, whereby a sold to B its gambling businesses for £6m; (ii) an option agreement; and (iii) an operator agreement. On 3 December, another agreement was made between RS and B (UK) Ltd (BUK) under which, in consideration of £199,999, RS granted to BUK an option to buy its shares in the company on written notice and payment of £1 (the RS option agreement). By effluxion of time, B and C, to whom an operating licence had been issued by the Gambling Commission, on 18 February 2011, entered into a new operator agreement in relation to the gambling business bought by B from A. B subsequently commenced proceedings for specific performance of a provision in the operator agreement obliging the company to transfer to B the benefit of the premises’ licences. On 16 March, BUK assigned to B its rights to acquire the shares in the company under the RS option agreement for £200,000, conditional on RS procuring the appointment of C Ltd, G Ltd and O Ltd as intervening directors of the company. A resolution to that effect was signed on behalf of RS as the company’s sole shareholder. On that same date, the intervening directors purportedly appointed the respondents as administrators pursuant to paragraph 22, schedule B1 to the Insolvency Act 1986 (the 1986 act), as introduced by the Enterprise Act 2002 (the 2002 act). On that same day, a board meeting was held, attended only by T on behalf of C Ltd. A record of that meeting indicated that T had taken the chair, declared the presence of a quorum and that the meeting was open. The record then went on to note that a written resolution had been passed by RS, and that C Ltd, G Ltd and O Ltd had been appointed as directors. It was proposed at that board meeting that, given the company’s financial difficulties, appropriate action was required and that the respondents had agreed in principle to act as administrators to the company should the board decide to place the company into administration. At that meeting, the board did so resolve. On 18 March, which was the return date of B’s summary judgment application for an order on the company to transfer the licences, the proceedings were effectively stayed because of the effect of the appointment of the respondents. On that same day, the company and C obtained, without notice, an order staying the administration on the ground that the administrators had not been validly appointed. On 25 March, the company and C (the applicants) applied to set aside the appointment of the respondents. The applicants submitted, inter alia, that the appointment of the respondents was invalid on the bases that: (i) the intervening directors had not themselves been validly appointed as directors of the company; (ii) even if the intervening directors had been validly appointed, they had not formed a majority of the board because C, M and H had already been duly appointed as directors of the company; (iii) no notice had been given to any of the existing directors as required by the articles of association; (iv) the meeting was inquorate; and (v) the decision of the intervening directors had not been made in the interests of the company but of B and should not be given effect. Relying on paragraph 105 of schedule B1 to the 1986 act, the intervening directors and B contended, inter alia, that because they had constituted a majority, it did not matter that there had been no meeting of the directors duly convened and held in accordance with the articles. The court ruled: Although the rules might be regarded on questions of construction of the terms of schedule B1 to the act, they themselves recognised that minutes should include a record of any resolution passed (see rule 2.44A(4)(c)). Accordingly, the distinction drawn in rule 2.2(2) of the rules between the resolution of the company and the decision of the directors did not appear to import any notion of informality to the decision of the directors. Whether a minute or a record, it should still be of a decision of the directors as such. Further, the terms of paragraph 105 of schedule B1 to the act gave to an act of the majority the same validity as would be accorded to an act of the directors as a whole but if the act in question should still be an act of the majority of such directors, there was no reason why the reduction in the requisite number of directors should also dispense with the usual rules of internal management. Furthermore, paragraph 105 clearly gave statutory force to the decisions in previous authority that a relevant operation might be performed if authorised by a majority of the board at a duly constituted directors’ meeting. However, it could not be accepted that it went further (see [49]-[51] of the judgment). To state that the reduction in the requisite number of directors should also dispense with the usual rules of internal management would be giving greater effect to a provision of general application than was to be derived from either the words used or the context in schedule B1 to the act in which they were used or in the previous case law. Further, had paragraph 105 been intended to go further than giving statutory force to decisions in previous authority that a relevant operation might be performed if authorised by a majority of the board at a duly constituted directors’ meeting, some clear statement to that effect would have been in the white paper which had preceded the 2002 act in which paragraph 105 was originally enacted as paragraph 103 or in the explanatory notes to that act. There was none (see [49]-[51] of the judgment). In the instant case, the submissions of C were to be preferred. Rule 2(2) of the rules would not bear the weight put on it. Further, paragraph 105 did not validate the appointment of the administrators on 16 March. It was plain that the so-called meeting had not been not a valid meeting of the board. No notice had been given to the existing directors. Indeed, it was plain that they had deliberately been kept in the dark. There had only been one person present, so there had been no quorum or indeed any meeting (see [49], [52] of the judgment). The appointment of the administrators had been invalid and ought to be set aside (see [52] of the judgment). Emmadart Ltd, Re [1979] 1 All ER 599 considered; Instrumentation Electrical Services Ltd, Re [1988] BCLC 550 considered; Equiticorp International plc, Re [1989] BCLC 597 considered. Company – Administrator – Restrictions on power to appoint Minmar Ltd and another v Khalatschi and another: Chancery Division (Sir Andrew Morritt): 8 April 2011
Michael Green QC (instructed by Clyde & Co) for the applicants. Marcia Shekerdemian (instructed by Isadore Goldman) for the respondents. Alan Gourgey QC (instructed by Fladgate LLP) for the interveners.
It has been said of the English that they prefer pets to people; but perhaps they prefer petrol to people. A cynical observation perhaps, but as the Lords prepares to sound the death knell for civil legal aid, a peak at No 10’s e-petitions website is instructive. Over 110,000 signed a petition opposing January’s 3p a litre fuel rise, while at press time more than 80 Tory MPs were expected to rebel over the measure. Contrast this with the 1,500 people who signed a petition opposing the civil legal aid reforms, and the steamrollering of the bill implementing the cuts through the Commons. The coalition has been disingenuous throughout. This has never really been about ‘greedy’ lawyers and saving money. That’s how it was spun to the complaisant tabloids, suckered into cheerleading for measures that will put the law out of reach of a significant chunk of their own readership demographic. It is hard to see this as anything other than an ideological crusade bent on removing the state from another area of civil society, for which the downturn provided a useful alibi. So will the Lords ride to the rescue? We can hope for scope concessions on clinical negligence and domestic violence. But with opposition to the cuts fractured, even that might be too much to expect. At this late stage, alas, it seems hope is all there is. Join our LinkedIn Legal Aid sub-group
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