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Libel juries: How Tim Yeo and Warby J buried the Seven Bishops

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It is ironic – and perhaps a little shocking – that an early high-profile beneficiary of Britain’s abolition of the right for juries to try libel cases should be a Member of Parliament – one who will doubtless have supported the Defamation Act 2013 that removed the long-standing right. So, step forward Tim Yeo, who will not (thanks to the new law and a sympathetic judge) have 12 jurors facing him in court who need to be persuaded that he did not show willingness “to abuse his position in Parliament to further his own financial and business interests in preference to the public interest“.*

Yeo succeeded in challenging Times Newspapers’ attempt to have a jury empanelled – but might be mortified that Mr Justice Warby in Tim Yeo MP v Times Newspapers decided the case could do without a jury because Yeo is just not an important enough figure to warrant one. Some public figures (government ministers or judges, perhaps, rather than footballers or celebs) might have to face a libel trial jury, but the moderately high and not-so-mighty-now Mr Yeo doesn’t quite cut the mustard.

More significantly, Warby’s decision about a jury has ditched centuries of legal and constitutional  principle, denying any public interest right for defamation cases involving senior public servants to be tried by those representatives of the public who constitute juries. But some background is needed.

New law on jury trial in defamation cases
Formerly (and for many centuries) there was a right to trial by jury in certain civil cases (malicious prosecution, false imprisonment, fraud, libel and slander) but with discretion to hold a trial under these headings without a jury if “the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury” (Section 69 of the Senior Courts Act 1981). More recently it was necessary for the parties to apply in good time (28 days) for a defamation case to be held with a jury under Part 26.11 of the Civil Procedure Rules (shown here as amended) but that application would be granted.

The 2013 Act removed libel and slander from the list, so there is now a statutory presumption that there will be no jury unless a court orders otherwise. The purpose of the new Act, according to the Master of the Rolls, Lord Dyson, seems to be a mixture of saving money and speeding up cases – which itself saves money. He said:

“Early resolution is desirable in defamation and privacy cases, as in other areas of litigation, to sort out disputes quickly and economically. It is particularly important in defamation cases, however, in view of the very high costs that can arise.” (Statement here pdf)

The problem with this statement is that it gives no guidance on when a jury should be used – since if the purpose of the Act is merely to save money and time, a jury could never achieve that. Surely there must be some greater principle than cheese-paring involved? Not least because the right that has now gone was once referred to thus by Lord Denning:

“Every defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the defendant has ventured to criticise the government of the day, or those who hold authority or power in the state.” (Rothermere v Times Newspapers Ltd [1973] 1 WLR)

The trial of the “Seven Bishops” ((1688) 3 Mod.Rep. 212 pdf) is generally taught as establishing this constitutional right as part of the story of Britain’s political progress. Denning concluded: “Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest – and is then charged with libel – then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents.”

Lawton LJ in the same case said:

“The wiping out of a litigant’s reputation may be of no consequence to anybody save himself, his family and his friends, but the wiping out of another’s, for example, a cabinet minister’s, may have consequences for the whole nation. When the public is likely to be affected by the result of an action for defamation it may be advisable to bring the public into the administration of justice by ordering trial by jury, even though the trial may be long, the issues complex and the documentary evidence massive and formidable.”

In Jonathan Aitken v the Guardian (1997 CA) Lord Bingham followed Denning: “An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest.” 

Although the right to trial by jury has now gone, surely the little judicial discretion that remains must carry some of the burden of the old “constitutional” right? This is the issue Warby was grappling with – but the principles he has arrived at are somewhat bizarre. He rejects Denning’s and Bingham’s notions except in the narrowest of circumstances.

Yeo v Times Newspapers
It was argued by Gavin Millar QC for the Times that some of the principles in the pre-2013 cases did indeed carry forward into the “bare discretion” that still allowed judges to order trial by jury – given no other guidance was given with the Act. So “the subject matter of the action [parliamentary standards and lobbying], the identity and status of Mr Yeo, and the offices or positions he holds” should all be weighed in the balance. (para 50) Warby rejects this: “Parliament no longer regards jury trial as a right of ‘the highest importance’ in defamation cases. It is no longer a right at all.” (Para 47) He notes:

“Mr Millar QC’s submissions do not identify any skills, knowledge, aptitudes or other attributes likely to be possessed by a jury which would make it better equipped than a judge to grapple with the issues that arise and may need to be tried.”

In other words Millar failed to show why jury trial would be more appropriate than trial by judge. Indeed on the issue of whether Tim Yeo’s behaviour met the obligations of “selflessness and integrity” required of an MP, a judge was the best person to give “a clear and reasoned answer” since, “an inscrutable jury verdict, open to interpretations, would not be desirable”. 

So we have moved on from the simple need to save time and money in libel trials. Warby has asserted a new principle, implying juries aren’t actually much cop when it comes to judging the ethical quality of an MP’s behaviour – or at least cannot have their reasoning analysed. Warby has imposed his own interpretation on the legislation, lacking as it does any guidance to its meaning: it was intended to produce better judgments, “clear and reasoned”, rather than (presumably) the vague and probably inconsistent view that issues from the jury room. Indeed Warby is quite happy to draw on one of the earlier cases he otherwise dismisses to underline this point. Bingham says in Aitken:

A general verdict of a jury could well leave room for doubt and continuing debate whether, on hotly contested issues, the plaintiff or the defendants have been vindicated. A reasoned judgment, giving the judge’s conclusions and his detailed reasons for reaching them, would by contrast settle, one would hope once and for all, whether or not the plaintiff had misconducted himself in each and every one of the ways charged.” (Aitken at 427) 

Juries don’t attach the reasons to their judgments. They simply fall down on one side or the other. So Warby says: “In a case involving disputes as to meaning and alternative defences of justification and fair comment a general jury verdict would be open to a variety of interpretations.” He adds: “the greater the public interest in the subject-matter of a particular dispute the more unsatisfactory this will be from the perspective of the public”.

Comment
So Warby, by picking and choosing among the precedents, seems to have suggested a new meaning for the 2013 Act – that it was intended to inject reasoning and explanations into judgments. Nowhere is that indicated in the Act or the notes accompanying it where only money-saving seems to be involved. Warby has reversed the whole constitutional principle underlying the former right to jury trial for defamation. The point of that right – and the point of the Seven Bishops case, is that where there is public interest, then it is for the public, represented by twelve jurors, to make the decisions about that public interest, to establish the facts of the case and to assign guilt. The important principle is that a jury cannot and should not be held to account for it, not that they ought to be.

The right has gone, but the discretion in the hands of an independent judiciary should surely have maintained that right in cases such as these – where a man who is a public servant and representative of the people is accused of breaching the ethical standards implicit in his very important role.

Warby considers it not such an important role. Yeo was chair of the Commons Energy Select Committee (and the Sunday Times allegation against him involved assistance to a solar panel firm). Warby says: “Mr Yeo has a prominent position but it does not afford any grounds for giving this factor any substantial weight here.” (Para 57) He adds later: “Neither party [Yeo nor the Sunday Times] is a public authority. Mr Yeo, whilst holding an influential position, is not in government and exercises no state power.” (Para 79)

So, if Yeo is not a significant enough personage to face a jury in his libel claim, who might be? Warby seems to allow only of situations where there might be the perception of “involuntary bias”: “An instance could … be a libel claim brought by a judge, of which there have been examples in recent history though none that have reached trial. There could be other cases not involving ‘rank or dignity’ but subject matter.”

This seems a pretty narrow area in which discretion would be exercised. A judge bringing a claim might see the advantage of a colleague on the bench judging it – and so must be denied that perceived advantage. One assumes that an actual government minister would face a jury – but it is not clear whether it would have to be a case of some failing in his ministerial duty or whether a mere extra-marital affair would qualify for a jury trial. 

Warby had noted earlier in his judgment that “the greater the public interest in the subject-matter of a particular dispute” the greater the need for a judge alone and his reasoned judgment. So would the eminence of the person at the heart of the trial (be it judge or Cabinet minister) trump the public interest – implying a jury trial? Or would the eminence/importance of the personality always add to the public interest, thus taking it further beyond the level of hoi polloi who might be jurors? Warby’s judgment is certainly “reasoned” – but is it “clear”? It ought not go unchallenged. 

Twitter: alrich0660

*Note: Andrew Mitchell’s “plebgate” libel cases (Mitchell v News Group and Rowland v Mitchell) will also be heard without a jury but in his case he would have preferred one. See Carruthers Law     

Aitken v Guardian is here
Cook v Telegraph is also relevant
• Thanks to Bailii.org for cases
Thanks also to RichGreenhill
• A report of the Yeo case is on Inforrm’s Blog
• Useful background here to the 2013 legal change (International Law Office)

Materials  

The issues (from Yeo v Times paras 5 and 6)
“The first of the articles of 9 June 2013 (‘the Front Page Article’) was the paper’s front page lead, continuing onto page 2. It was headed ‘Top Tory in new Lobbygate row’ and there was a sub-headline: ‘MP coached client before committee grilling’. The article, 27 paragraphs long, gave an account of the arrangements for the lunch meeting, and what took place at the meeting. It referred to a House of Commons Code of Conduct prohibiting paid advocacy by MPs, and described Mr Yeo as ‘the latest politician to be implicated in a “Westminster for sale” scandal that has engulfed Parliament’ after revelations in The Sunday Times the previous week. After referring to what had happened to other parliamentarians so ‘implicated’ it described an email exchange between the ‘lobbyists’ and Mr Yeo the day after the lunch meeting, and quoted a statement from Mr Yeo. 

The second article of 9 June (‘the Inside Article’) appeared on pages 6 and 7 of the print edition. It was headed ‘I told him in advance what to say. Ha-ha’ and had a sub-headline ‘The chairman of a Commons committee has boasted of how he can promote businesses in which he has an interest’. Over 57 paragraphs it gave a more elaborate account of the matters covered in the Front Page Article, with some additional material. It included a graphic with the words ‘Westminster for Sale’.”

Yeo denies the claims in the articles and says they are defamatory. Times Newspapers denies they are defamatory. Warby held that the articles held potentially defamatory meaning, saying:

“In my judgment these articles clearly did contain defamatory comment or opinion, both explicit and implicit. First, there is explicit comment in paragraph [15] of the Front Page Article, where Mr Yeo was said to be ‘implicated’ in a ‘scandal’. The ordinary reader would understand this as a comment or opinion or value judgment about Mr Yeo’s behaviour as alleged in the article, to the effect that this was scandalous. The use in the headline of the term ‘Lobbygate’ supports the suggestion of involvement in scandalous behaviour. The ‘facts on which the comment was based’ are amply indicated within the articles. They consist of the role of Mr Yeo as an MP and chairman of the ECCSC and his alleged conduct as described in some detail in the two articles. The comment that Mr Yeo’s behaviour was scandalous is defamatory. 

“Secondly, I agree with TNL that the ordinary reader would understand these articles to contain an implied defamatory comment about Mr Yeo’s use of his Parliamentary position to further his own financial and business interests. That meaning, in my view, is that Mr Yeo had shown willing to abuse his position in Parliament to further his own financial and business interests in preference to the public interest. This is similar to but slightly different from TNL’s pleaded meaning. The meaning is not express, but in my judgment clearly implied by the articles.” (Paras 107 and 108)

 

 

 

 

 

 

 

 

Bank error in your favour? Santander may be coming for you

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Santander Bank in Britain has been given the right to identify and pursue by telephone and email the beneficiaries of erroneous payments – even though the thousands of pounds-worth of errors were made as a result of Santander’s own failings.

The High Court has rejected privacy concerns and ruled that Santander can force other banks to reveal the details of mistaken beneficiaries by issuing a “Norwich Pharmacal” order – usually used to reveal fraudsters and other wrongdoers – even though wrongdoing may not have occurred in these cases. 

The unwitting beneficiaries can now have their names, addresses, emails and telephone numbers revealed to Santander which can use them to press customers to repay the money or ultimately take legal action against them. Mr Justice Birss in the High Court Chancery Division has concluded that privacy rights are trumped by property rights. The orders are supposed to be issued only in exceptional cases but Birss has in effect created a rubber-stamping mechanism for issuing the orders whenever banks make errors and cannot trace the beneficiaries.

The case undermines the right to privacy by suggesting that in future there need not be real evidence of wrongdoing (eg fraud or internet piracy) or of a wrongdoer before such orders are issued. They can be issued on the assumption of wrongdoing without an arguable case being put in open court that wrongdoing has occurred.

Hundreds of such transfer errors occur each month and Santander has recently set up a Refunds and Recoveries team to deal with them. Typical errors include duplicate payments, the selection of an incorrect mandate and the insertion of an incorrect account number. In some cases the bank is stymied when trying to get money back from customers of other banks because the beneficiaries – whose names and details are unknown to Santander – are protected by the other banks’ confidentiality.

A Norwich Pharmacal order is made against someone who was “mixed up” in wrongdoing (innocently or otherwise) but who would not  reveal the wrongdoer, perhaps citing administrative rules or confidentiality. Once the “wrongdoer” is identified, money due can then be discovered by “equitable tracing” (TRACING RULES: pdf) – following it into bank accounts and assets to make a claim on it as being held on trust – or other legal action can be taken. 

Applications for the orders have been made in the past to deal with fraud and internet piracy (where the order might be issued against an internet service provider) and in a failed attempt to expose details of torture (Binyam Mohamed). Cases have included Bankers Trust v Shapira [1980] 1 WLR 1274 where a £1m fraud was alleged and an order issued to reveal details of the apparent wrongdoer’s account. On that occasion Waller LJ said: “Clearly it is undesirable that an order such as this should be lightly made.”

Santander has made paper applications for 85 Norwich Pharmacal Orders since it started doing so in 2013 and another 250 are expected this year. However the case before Mr Justice Birss (Santander UK v National Westminster Bank and others [2014] EWHC 2626 (Ch)) was intended as a full open court hearing to establish principles for their use and iron out inconsistencies – and publicly establish that Norwich Pharmacal orders are valid for such minor cases without producing evidence of actual wrongdoing.

The case concerned eight examples of erroneous transfers being made by Santander ranging from £550 to £12,000. The bank argued that, prima facie, it had a right to retrieve the money under the equitable doctrine of unjust enrichment on the basis of mistaken payment. Broadly this means that the money should be returned because a reasonable person aware of the mistake would accept s/he had no right to it. A court would use its equitable jurisdiction to put the matter right not least since “It is not obvious what the beneficiary’s defence would be.” (Birss, para 40)

Famously there is a “change of position” defence if the beneficiary was unaware of the error and spent the money – on consumables rather than on items such as jewellery or investments that retain value. However, it was for the beneficiary to make such defences once legal action is instituted, said Birss. He said:

“Although the evidence does not establish with certainty that the beneficiary bank [ie bank of the customer who received the money in error] has in every case actually informed the beneficiary himself or herself, it is a reasonable inference that that has happened and so it is a reasonable inference that the beneficiary has neglected or refused to repay the money or otherwise engage with the matter.”

Furthermore “the beneficiary bank clearly knows or should know the identity of the beneficiary and is mixed up in the unjust enrichment sufficiently to justify an order. After all the money was paid into an account at the beneficiary bank”.

For good measure Birss threw in property rights under the European Convention on Human Rights Article 1 Protocol 1 balanced against rights to privacy. He considered that providing Santander with the name, address, telephone number and email address of the beneficiary was proportionate subject to Santander’s “limited right to use it”. The order is limited to the name(s) of the holder of the account into which the money was paid. Dates of birth will not be provided and: “The claimant’s right to use the information provided is limited to the purpose explain in the application. It can be used to further the claim to recover the money paid by mistake but for no other reason.”

Birss concluded: “The Norwich Pharmacal jurisdiction is a useful and important remedy available from the court to enable justice to be done. It is potentially intrusive and the balancing of the parties’ rights and interests is not always straightforward. In the eight live applications before me, Santander has a proper claim to disclosure from the beneficiary banks of the identities of the beneficiaries of the mistaken payments.”

Comment
Although this case seems to be a sort of tidying up exercise, justifying practice that had already occurred, albeit in paper cases handled by lesser judicial figures such as Chancery masters, it has nevertheless extended what was conceived as a “strong order” used in limited and serious circumstances to rather minor issues. Not least it allows Santander and other banks seeking the order to put right the results of their own incompetence or accidental error.

Birss J has not required any evidence of wrongdoing in these cases, such as beneficiaries of mistakes wilfully holding on to money they know is not theirs. Instead he has said “it is a reasonable inference” that the beneficiary knows the situation and “a reasonable inference” that they are refusing payment (Birss, para 28).

This “reasonable inference” will act as a template for all such cases because there is no one to rebut it. The recipients of mistaken payments who, in some cases may not even have noticed them, will be condemned in absentia as wrongdoers in order to facilitate the clearing up of banks’ failings. There is no one to speak on their behalf because the respondents in these cases are other banks who pay lip-service to confidentiality but in reality have no reason to resist Norwich Pharmacal orders. Indeed, they will benefit when they send out mistaken payments themselves. “In these cases the beneficiary bank does not consent but does not oppose the applications and so the application is unlikely to be contested,” as Birss noted.

It is not clear from the case whether Santander is a particularly egregious offender when it comes to making mistaken transfers. Its lawyer gave this example: “May 2014 Santander sent 8.5 million Faster Payment transfers and there were 603 Santander errors relating to those payments in the same period.” A proportionately tiny number and not all those 603 will require Norwich Pharmacal orders (in some cases the bank already knows where the money went).

Nevertheless the idea that hard-pressed Chancery masters and judges are busying themselves day in and day out helping to put right bank errors is worrying. This is the process explained in court:

“If the details are not provided [by the "beneficiary bank"] then Santander can either write off the loss or take some other step to identify the beneficiary. Santander’s policy is that if the loss is less than a certain sum (which they regard as confidential) it will be written off but values more than that are transferred to the bank’s solicitors to progress an application for a Norwich Pharmacal order. Santander do not approach the court unless it has no other way of contacting the beneficiary. Santander’s external solicitors contact the beneficiary bank. The beneficiary bank generally adopts the position that it does not consent to nor does it oppose the making of a Norwich Pharmacal order. An application for a Norwich Pharmacal order is made to the court. If it is granted it is then served on the beneficiary bank, which then complies with the order and reveals the identity of the beneficiary. The beneficiary bank also confirms its costs of complying with the order, which are paid by Santander.”

In other words the result of the orders is a foregone conclusion. The beneficiary’s banks are adopting attitudes – that they respect confidentiality – but in reality couldn’t care less whether they hand over the details. The law courts are resorted to in order to make them do what they want to do anyway but with legal protection. From this case we can see that Santander finds the Norwich Pharmacal option worthwhile to retrieve sums as low as £550. Birss has set the bar rather low for the banks, put the state’s courts at their service for relatively small sums and hence allowed them to avoid the costs of their errors. That means they have less of an incentive to sort out their systems in the first place. 

The Norwich Pharmacal order cases have hitherto given serious consideration to the proportionality of issuing the orders as against confidentiality/privacy and concluded, for example, that “an arguable case on the ground of breach of contract and trespass” must be shown (Viagogo). Santander has shifted the standard of proof quite significantly – basically to no standard of proof at all, merely the “inference” that someone with extra money in their account must have been told they have it and must be retaining it wrongfully. An inference is not even a “reasonable suspicion” (see Macdoel Investments) or a “good arguable case” (Binyam Mohamed), never mind a prima facie case. This cannot be right – but given claimant and respondent both have the same interests, there is no one to argue this important point of legal principle.

Twitter: alrich0660

Thanks, as ever, to Bailii.Org for case materials

Materials
Lord Reid in Norwich Pharmacal: “But that does not mean, as the Appellants contend, that discovery will be ordered against anyone who can give information as to the identity of a wrongdoer. There is absolutely no authority for that. A person injured in a road accident might know that a bystander had taken the number of the car which ran him down and have no other means of tracing the driver. Or a person might know that a particular person is in possession of a libellous letter which he has good reason to believe defames him but the author of which he cannot discover. I am satisfied that it would not be proper in either case to order discovery in order that the person who has suffered damage might be able to find and sue the wrongdoer. Neither authority, principle nor public policy would justify that.

“So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who las no other connection with the wrong than that he was a spectator or has some document relating to it in his possession. But the Respondents are in an intermediate position. Their conduct was entirely innocent; it was in extecution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference?” (Para 9 and 10)

Lord Cross of Chelsea: In the course of the argument fears were exposed that to order disclosure of names in circumstances such as exist in this case might be the ” thin end of the wedge “, that we might be opening the door to ” fishing requests ” by would-be plaintiffs who want to collect evidence or to requests for names made to persons who had no relevant connection with the person to be sued or with the events giving rise to the alleged cause of action but just happened to know the name. I think that these fears are groundless. In the first place, there is a clear distinction between simply asking for the name of a person whom you wish to make a defendant and asking for evidence. This case has nothing to do with the collection of evidence.

Secondly, although in any case which was on all fours with this case or any subsequent case which may be decided the Commissioners or any other person who was asked for a name would no doubt give it without putting the applicant to the expense of obtaining an order of the Court; in any case in which there was the least doubt as to whether disclosure should be made the person to whom the request was made would be fully justified in saying that he would only make it under an order of the Court. Then the Court would have to decide whether in all the circumstances it was right to make an order. In so deciding it would no doubt consider such matters as the strength of the applicant’s case against the unknown alleged wrongdoer, the relation subsisting between the alleged wrongdoer and the respondent, whether the information could be obtained from another source, and whether the giving of the information would put the respondent to trouble which could not be compensated by the payment of all expenses by the applicant. The full costs of the respondent of the application and any expense incurred in providing the information would have to be borne by the applicant.” (Para 100)

Lord Kilbrandon: “The most attractive way to state an acceptable principle, intellectually at least, may be as follows. The dispute between the plaintiff and the defendants is of a peculiar character. The plaintiff is demanding what he conceives to be his right, but that right in so far as it has patrimonial substance is not truly opposed to any interest of the defendants ; he is demanding access to a court of law, in order that he may establish that third parties are unlawfully causing him damage. If he is successful, the defendants will not be the losers, except in so far as they may have been put to a little clerical trouble. If it be objected that their disclosures under pressure may discourage future customers, the answer is that they should be having no business with wrongdoers. Nor is their position easily distinguishable from that of the recipient of a sub-poena, which, in total disregard of his probable loss of time and money, forces him to attend the court for the very same purpose as that for which discovery is ordered, namely, to assist a private citizen to justify a claim in law. The policy of the administration of justice demands this service from him.” (Para 110)

Norwich Pharmacal Company & Others v Customs And Excise [1973] UKHL

See also: Golden Eye (International) Ltd & Ors v Telefónica UK Ltd & Anor [2012] EWCA Civ 1740

Rugby Football Union v Viagogo [2012] UKSC 55   

Macdoel investments v Federal Government of Brazil  [2007] JCA 069 CA  

Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs  
Here Mohamed failed to get an order against the UK Government to support disclosure in a “good arguable case” that he had been tortured by the United States (with the suggestion that the UK was “mixed up” in the torture though not the perpetrator). So the Norwich Pharmacal order protects banks from their blunders when there is no evidence that crime has occurred but does not assist alleged torture victims.

 

 


 

Ministry of Justice’s 2½-year legal wrangle over ‘bullying’ Court of Appeal Master

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The UK Ministry of Justice has been caught up in a two and a half year legal wrangle with senior Court of Appeal lawyer accused of bullying conduct.

Robert Hendy, a Master in the Civil Appeals office, has been suspended on full pay in excess of £65,000 since December 2011 when two female lawyers made complaints about him. His conduct was said to be bullying and undermining of colleagues. Hendy denies all the allegations against him.

His dispute about disciplinary procedures reached the High Court this week where Mr Justice Mann said: “There were also allegations of casual racism, alcohol misuse, absenteeism and neglect of his official duties, both managerial and substantial” – though these have since been dropped.

The High Court had heard that after compiling a 70-page report on the matter, an investigations officer appointed under the MoJ disciplinary procedure, Stephen McAllister, concluded there was enough evidence to prove the bullying and harassment allegations against Hendy and that they should be considered serious and that specific allegations of bullying particular people should be regarded as gross misconduct. He made comments about his power to sack people and “He [McAllister] found that Mr Hendy made a number of sexual innuendo remarks over time, meant in jest but having an adverse effect on the recipient.”

A racism claim was rejected and there was “no clear evidence to link the use of alcohol in the workplace and the performance of his official duties” and no case to answer on performance issues. The court heard that Hendy complained about these allegations ever having been brought up and said of all the complaints that they were trumped up and were effectively the result of a conspiracy between the two complainants.

A finding of gross misconduct was made against him in March 2013 and he was sent a letter summarily dismissing him but an appeal manager, Philip Copple, overturned the decision to sack him on the grounds that his defence had not been tested by putting his version of events to the complainants. He noted:

“I do not suggest it is necessary to shuttle back and forth repeatedly between the witnesses, putting any new fragment of evidence or nuance that emerges from one witness to all the others, before it is safe to draw a conclusion. But I do contend that in a case of potential gross misconduct, a sufficiency of enquiry does require that at some point in the disciplinary process, whether during an investigation or a hearing, that the alternative account of disputed events and other submissions of the person under investigation, which s/he claims are indicative of dishonesty in others, are put to those other witnesses to elicit and assess their responses. This did not happen in this case.”

He suggested that Hendy be allowed to put questions to the witnesses/complainants. Hendy was reinstated, though he remained suspended. A new investigating officer and determining officer were appointed to proceed with the disciplinary case. Hendy claimed the new process would be a rubberstamping of the earlier decision and hence sought a high court injunction to halt proceedings until a fresh investigation by an independent person agreed by both parties. However, Mr Justice Mann rejected Hendy’s application.

Hendy’s case and the law
Hendy’s claim is that the MoJ disciplinary procedure is contractual and hence should be adhered to. Hendy says his means there are “implied terms of the contract that the defendant [MoJ] should not conduct itself in a manner likely to destroy or damage the employment relationship”, operate the procedure fairly and transparently and according to the requirements of mutual trust and confidence implied into every contract of employment. In particular Hendy’s case should have been put to the complainants as suggested by the appeal manager, Copple. Copple’s recommendation had in effect become a contractual right in favour of Hendy (ie since not to follow his recommendation would breach the implied term of mutual trust and the obligation of good faith).

The MoJ denied that the procedure was part of Hendy’s contract of employment though it accepted there was an implied obligation to operate a fair process.

The law on whether disciplinary procedures are contractual is vexed. Procedures are not necessarily written into contracts but “the fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee” (Alexander v Standard Telephones & Cables Ltd (No 2), [1991] IRLR 286, 292-3. This was a case in which a union “last in, first out” redundancy agreement was held not to have been incorporated into workers’ contracts of employment.

The MoJ procedures stated explicitly: “This policy does not form part of your contract of employment. However, you are bound by the provisions of this policy which may be amended from time to time.” That the employee is “bound” by the procedure suggests a contract but Mann said: “Looking at the document as a whole I do not consider that the terms of the policy itself have a contractual effect binding the employer to carry out particular acts under it.” Only the employee is “bound”, suggesting no bilateral obligation – and s/he is “bound” to do very little other than accept categories of misconduct. Acceptance of good faith and fairness “does not require the incorporation of terms into some sort of contract”.

Mann rejected the point about Copple’s recommendation becoming contractual but considered there was an arguable view that they should be followed because of the duty of fairness. However:

“It is not, in my view, arguable that each and every part of Mr Hendy’s case, including his reasoning on credibility, needs to be put to each and every relevant witness. It is not a mechanical process. What needs to be put is enough to enable a reasonable view to be reached. What qualifies for this purpose will be a matter for the reasonable judgment of the investigator, and then for the determining officer who has to consider what steps to take on the investigator’s report.”

In fact Mann considered the new investigating officer had made great efforts to do this though one complainant had been too upset to read new material from Hendy and seven matters were not put to the complainants. But “what was required was that he should do enough to be able to test the complainants’ credibility”. Mann concluded the investigating officer’s “procedures were sufficiently fair to prevent there being an arguable breach of contract in that respect”.

Hendy had failed to establish there was unfairness of sufficient seriousness to justify halting the whole proceedings. An outcome that might be the result of and unfair procedure could be challenged later at tribunal and damages sought. Injuncting the procedure would leave Hendy suspended on full salary for a further considerable time – money he would not be able to repay if he lost his disciplinary case. Such a financial loss to the MoJ should be weighed in the balance when considering injunction. Hendy’s application for injunction therefore failed.

Twitter: alrich0660

Note: The case of Hendy v Ministry of Justice is here.

The Civil Appeals office 
The Office supports the Court in making the best use of the judicial resource. To that end: It verifies whether this Court has jurisdiction; It ensures that all the papers necessary for determining the case are available and in good order; It ensures that there is compliance with all procedural steps; It manages the progress of each case from setting down to disposal; The Office draws up the constitutions of the Court, and under the Direction of the Master of the Rolls supervises the allocation of cases to those constitutions; The Office ensures that orders reflecting the decisions of the Court are properly drawn; and The Office provides assistance to the legal profession and to individual litigants.

The Civil Procedure Rules, Part 52.16 (2), provide that the Master and the Deputy Masters may exercise the jurisdiction of the Court insofar as it relates to: any matter incidental to any proceedings in the Court of Appeal; any other matter where there is no substantial dispute between the parties; and the dismissal of an appeal or application where a party has failed to comply with any order, rule or practice direction. In practice most of this business is handled on paper, although there are weekly ‘dismissal lists’ taken in open court by the Master or by the Deputies. Those orders are reviewable by the Court. Justice.gov.uk

 

 

 

 

 

 

 


 

 

 

 

 

 

Court wrangle for Drax over renewable energy subsidy

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Note: since this piece was posted DECC has won its appeal against Drax (7 August 2014) and the power generator has abandoned further legal action (with its share price duly dropping). See “The Court of Appeal judgment” below.

Shares in UK energy company Drax leapt more than 40p after it won a High Court victory against the Department of Energy  and Climate Change (DECC) over renewable energy subsidies (14 July 2014). It is the second court win against DECC mishandling of the green energy business sector announced within days. (See previous post)

DECC had failed to accept one of Drax’s biomass conversion projects as eligible for a subsidy scheme involving contracts for difference (CfDs), intended to provide certainty on prices for renewable generation.

Mrs Justice Andrews ruled that: “When properly understood, Drax’s application did satisfy the Key Criterion [for the CfD subsidy] and no decision maker, properly informed, who accepted that Drax was telling the truth …  could have concluded that it had failed to do so or that the information given by Drax was insufficient to satisfy him that it passed the test.” She added: “The matter will have to be remitted to DECC for reconsideration in the light of this judgment.”

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Contractual rights are property rights: Government blunder on feed-in tariffs

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The UK Government faces a bill for up to £200m in compensation to green energy installers that suffered losses as a result of former energy secretary Chris Huhne’s 2011 announcement on proposed cuts in environmental subsidies. The announcement led to many organisations and individuals dropping plans to install solar power with feed-in tariff (FIT) equipment that feeds electricity generated by small-scale solar panel systems into the grid, producing a payment.

A legal ruling in the High Court (Breyer Group plc & Others v DECC issued 9 July 2014 ) is the second time in a week that the government has been show to have fallen foul of the principle that the law should not be retrospectively changed if it damages people’s interests. (See the Poundland case: UK Human Rights Blog)

Are contracts property?
The High Court established in its ruling on preliminary legal issues that pre-existing contracts to supply the solar micro-generation equipment constitute “property” for the purposes of protection of property rights under the European Convention on Human Rights. Furthermore, Huhne’s announcement, which proposed bringing forward a reduction of the subsidised payment, constituted an “interference” with those property rights. This should potentially be compensated, said Mr Justice Coulson.

The 31 October 2011 announcement that cuts in the feed-in payment might be brought forward amounted to a retrospective change in legislation without passing new legislation through Parliament. “The proposal would have taken away existing entitlements without statutory authority.” The announcement damaged businesses and hit consumers who had planned to install the equipment on the basis of the higher payments. As such it breached ECHR Article 1 Protocol 1 (A1P1) on protection of property rights regarding contracts concluded on or before the day of the announcement.

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Mass surveillance in the UK: Charles Farr’s flawed arguments

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Hang on! Just because UK government security official Charles Farr says GCHQ et al have done nothing unlawful in their mass digital surveillance, that’s no reason to believe him. You wouldn’t believe a burglar rifling through your drawers; why believe the spokesmen for the people rifling through your personal emails and internet searches?

Farr has put in a defence in the case brought by Privacy International against the Government, not a statement of the law, yet it is being treating as gospel truth. In particular people are demanding the law be changed – conceding that the surveillance is currently lawful (among them pro-security services types such as Lady Neville-Jones).

In fact a judge has not ruled in the case yet, and there are fundamental flaws in Farr’s argument that UK-originated digital material on overseas servers is fair game even though it originated in or returned to the “British Islands” (in the quaint formulation of the 2000 Regulation of Investigatory Powers Act).

For starters it is strongly arguable in law that nothing in the Act can sanction unreasonable mass surveillance – since that was not the purpose of the Act. RIPA was intended to enact a European Directive banning such downloading and storing of personal material and a judge will interpret it in that light. He or she is likely to take a dim view of any alleged “loopholes” in it. (This argument is made briefly below and at length here.)

But Farr’s case is further flawed – not least by a disingenuous attempt to claim parliamentary sanction for mass surveillance on the basis of an arcane exchange in the House of Lords one July evening in the year 2000.

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Squatting, adverse possession and the LASPO s.144 debacle

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Ancient Roman law gives illegal squatter £400,000 home. Or so you would think from the coverage of builder Keith Best’s Land Registry claim to have 35 Church Road, Newbury Park, Ilford, registered in his name.

The importance of the case is (or will be when it goes through appeals) that it should clarify how far the criminalisation of squatting (LASPO S.144) impacts on the law of adverse possession.

It’s a knotty problem. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 rendered squatting illegal if the occupier “is in a residential building as a trespasser having entered it as a trespasser”. The Act is in a sense retrospective. You fall within it even if you entered the premises before the Act was passed – in Best’s case around 2000.

Best unfortunately staked his adverse posession claim after the Act came into force so the Land Registry rejected it on the grounds he was an illegal trespasser according to the meaning of Section 144. Adverse possession, far from being a Roman law, is covered by Schedule 6 to the Land Registration Act 2002 which says: “A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.” A further two years is allowed while the registrar contacts the registered owner (“the proprietor of the estate to which the application relates,“) plus others with a potential interest to see if they object to the transfer to a new owner.

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