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Harrington Hearsay Newsletter

11th November 2007

ISSUE 17

TORT

Roberts and another v Gable and others
[2007] EWCA Civ 721
Libel – qualified privilege – reportage
CA: a journalist has a defence of qualified privilege to a libel claim where he has reported both sides of a dispute, usually political, without verifying its truth, in a neutral manner without exaggeration and where they have not made any assertions as to the truth of the dispute. This defence is a special kind of qualified privilege, known as reportage. There is no need for the accuracy of the information to be checked because the report is about the fact that statements were made, rather than the truth of those statements. The defence is lost if the journalist fails to report the dispute in a fair, disinterested and neutral way. If this is not the case, it will have to be shown that the report is in fact accurate. When considering whether a defence of reportage has been established, an objective approach is adopted. The factors to be considered in all the circumstances of the case include: whether the information is in the public interest, the seriousness of the allegation and the factors outlined in Reynolds v Times Newspapers [2001] 2 AC 127.

Welsh v Stokes and another
[2007] EWCA Civ 796
Animals – ss.2(2)(b) Animals Act 1971
CA: where damage is done by an animal not of a dangerous species, ss.2(2)(b) Animals Act 1971 covers the situation where the damage is due to the normal behaviour of the species in the particular circumstances which caused the damage. The relevant question is whether the behaviour is a characteristic normally found in that species in the particular circumstances.

Funnell and another v Adams and Remer (a partnership)
[2007] EWHC 2166 (QB); [2007] All ER (D) 172 (Sept)
Negligence – defendants extricating themselves – chain of causation
HC: the claimants had taken on a lease which the defendant solicitors had negligently failed to advise the claimants would require them to fulfil certain obligations or incur increases in rent when reviewed. The claimants business situation declined and on becoming aware of the likely higher cost of the lease, assigned it to a third party. The defendants claimed that the claimants financial situation meant that this would have occurred anyway, breaking the chain of causation. The court ruled that the claimants had taken reasonable steps to extricate themselves from the situation caused by the negligence and that the chain of causation was not broken by their actions.

PROPERTY

Lewisham London Borough Council v Malcolm [2007] EWCA Civ 763; [2007] All ER (D) 401 (Jul) Possession order – disability discrimination – ss.93(2) Housing Act 1985 – s.22(3)(c), s.24 Disability Discrimination Act 1995 CA: where a possession order is sought against a tenant who has lost his secure tenancy under s.93 Housing Act 1985 by sub-letting, if the tenant can show that the landlord’s actions amount to unlawful discrimination, under s.22(3)(c) Disability Discrimination Act 1995 the court can withhold the possession order even though the landlord has a right to possession in law. It is not necessary for the landlord to have knowledge of the tenant’s disability under s.24 Disability Discrimination Act 1995 as a lack of knowledge will not provide a defence to discrimination.

EMPLOYMENT

McAdie v Royal Bank of Scotland [2007] EWCA Civ 806; [2007] All ER (D) 477 (Jul)
Unfair dismissal – ill health caused by employer – ss.98(1), 98(2)(a) Employment Rights Act 1996
CA: where an employee has been dismissed because that they no longer have the capability to perform the work of the type they were employed to do for reasons of ill health under the terms of ss. 98(1), 98(2)(a) Employment Rights Act 1996, even if the employer caused this ill health this is still a fair dismissal. An employee should pursue compensation for breach of duty by an employer, not a claim of unfair dismissal.

Redcar and Cleveland Borough Council v Bainbridge and others [2007] EWCA Civ 910; [2007] All ER (D) 128 (Sept)
Equal pay – ss. 1(2)(b),(c), 1(5) Equal Pay Act 1970
CA: where a woman is on a higher graded job than a man and receives less pay, a claim for equal pay can be pursued under ss. 1(2)(b) Equal Pay Act 1970 when read with ss. 1(5) Equal Pay Act 1970.

COSTS

Vellacott v Convergence Group plc and others [2007] EWHC 1774 (Ch)
Payment of costs by non-party – s. 51 Supreme Court Act 1981
HC: where a non-party to litigation stood to benefit from the case, has given all the instructions and controlled the conduct of the litigation from the outset, has pursued a case they knew to be unfounded and has been advanced on a false basis, they are to be regarded as a real party to the proceedings. On the facts, the case was exceptional within the terms of s.51 Supreme Court Act 1981 and costs were awarded against the non-party which included the cost of failed mediation.

SES Contracting Ltd and another v UK Coal plc and others [2007] EWCA Civ 791; [2007] All ER (D) 410 (Jul)
CPR 48.1 – reasonable behaviour – order for costs
CA: under CPR 48.1, where the respondent has contested the allegations against him and an application for the disclosure of documents before the commencement of proceedings, this behaviour should not be regarded as unreasonable enough to depart from the general rule that the respondent should receive his costs without other factors being taken into account which suggest that the judge’s discretion should be exercised to award costs against the respondent.

LIMITATION

Barnstaple Boat Co Ltd v Jones [2007] EWCA Civ 727; [2007] All ER (D) 240 (Jul)
ss.32(1)(a) Limitation Act 1980 – action in deceit – knowledge of facts
CA: under ss.32(1)(a) Limitation Act 1980 the limitation period for an action in deceit begins to run when the claimant knows the representation made to him was untrue, or when he could have discovered this with reasonable diligence.

EVIDENCE

Welsh v Stokes and another [2007] EWCA Civ 796
Hearsay evidence – ss.4(2) Civil Evidence Act 1995
CA: in awarding judgment, reliance on hearsay alone as the central evidence for the claim is justifiable in appropriate circumstances, although the court should be particularly careful before according it weight. The factors listed in ss.4(2) Civil Evidence Act 1995 will indicate the weight to be accorded to the hearsay evidence, but may not be determinative.

PRACTICE AND PROCEDURE

Awoyami v Radford and another [2007] EWHC 1671 (Admin); [2007] All ER (D) 183 (Jul)
Counsel immunity of suit – limitation of action for negligence
HC: the decision in Arthur JS Hall & Co (a firm) v Simons [2000] 3 All ER 673 operates retroactively to 1991, the point in time at which counsel’s immunity from suit was no longer justified. Negligence by a solicitor in 1995 could be the subject of proceedings as there was no immunity from suit at that point in time.

Leeds City Council v RG [2007] EWHC 1612 (Admin)
ASBO – ss.1(1),(8) Crime and Disorder Act 1998 – extending duration of order
HC: an application may be made to extend the duration of an anti-social behaviour order under ss.1(8) Crime and Disorder Act 1998 but it will only succeed if there is a justification for seeking to extend the order, rather than making an application for a fresh one and there is material available to demonstrate that this extension is necessary to achieve the objective of the statute.

PR Records Ltd v Vinyl 2000 Ltd and another [2007] EWHC 1721 (Ch); [2007] All ER (D) 265 (Jul)
Joinder of party for costs order – CPR 48.2
HC: it is not necessary to examine the merits of an application under CPR 48.2 to join someone to the proceedings who was not previously a party for the purposes of a non-party costs order. The party should normally be joined in the absence of evidence demonstrating that this would be an abuse of process.