Same-sex relationships and the discrimination of landlords under death of secured tenants, provokes the wisdom of the judiciary when the progressive interpretation of existing statute is the only salient answer to a claim for devolved rights by the freeholder.
After living together in a committed homosexual relationship for over thirty years, the respondent had been left facing continued occupancy of the flat under the terms of an assured rather than secure tenancy following the death of his partner and secure tenant, thus by falling subject to the lesser of the two tenancies, the respondent had become vulnerable to potentially increased rents and no legal rights to challenge repossession should the freeholder decide to remove him.
Having sought enforcement under sch.2 para.1 of the Rent Act 1977 the appellant landlord argued that same-sex relationships were precluded from the enjoyment of direct succession of statutory tenancy as prescribed, however those surviving death could remain in occupation under an assured tenancy, as was held in Fitzpatrick v Sterling Housing Association Ltd.
Whereupon the respondent argued that as that case was raised prior to the Human Rights Act 1998 (HRA), devolution of rights through the application of the 1977 Act constituted a direct violation of arts.8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), therefore he was free to remain in occupation under the same rights bestowed those in sch.1 paras.1, 2 and 3 of the 1977 Act, which stated that:
“1.Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as “the original tenant”) who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.
2. If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.
3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence.”
Historically the courts viewed para.3 of the Rent Act 1977 as designed to treat unmarried women as family members in order to allow assured tenancies to permit continuous occupancy when no marriage or family previously existed, however Fitzpatrick widened the scope of entitlement when the House of Lords had held that:
“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”
In the first hearing the court awarded for the respondent on principle that overt discrimination was not a virtue welcome in English law, while the Court of Appeal upheld the previous judgment before the matter wound up before the House of Lords.
Here the facts were given equal attention before the House dismissed the appeal on grounds that the time was right to embrace the universal nature of close and loving bonds and the freedoms of the Convention without a need for Parliamentary involvement, while further holding that:
“[T]he social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship.”
In this conjoined appeal case there were two matters in need of address, and both involved a local authority and the issuing of final care orders for families in need of reunion. The first was re S (Minors) (Care Order: Implementation of Care Plan) and the second re W (Minors) (Care Order: Adequacy of Care Plan) as shown below:
Re S (Minors) (Care Order: Implementation of Care Plan)
As the mother of three children aged fourteen, eleven and ten, to two fathers, the oldest of them was raised by the father of his younger siblings, and over a course of almost a decade became subject to both emotional, physical and sexual abuse on an almost routine basis.
Having run away from his home the victim explained his suffering and was subsequently placed into foster care, whereupon the stepfather denied all allegations with the full support of the victim’s mother, yet when challenged he displayed threatening behaviour before the local authority and was later sentenced to community service.
In light of those events the two younger children were also placed into foster care, while the parents separated in order to obtain their return to the family home despite recommendations by professional experts that the father remained an unacceptable risk to the children.
Following a hearing in the local court the father was found guilty of sexually abusing the eldest child, while both parents were held to have been physically and emotionally abusive towards all three children, with particular regard to the eldest sibling, while the local authority responded by seeking care orders for the three children.
While it was agreed that the eldest was to remain in foster care, the younger children were designated a care plan involving their return to the mother, however there was a degree of anxiety surrounding the absolute power of local authority decisions in such circumstances, and so mention was made of the potential human rights violation should the mother and children not retain a tenable relationship, along with the proposal of interim care orders so as to provide assurances to the family.
At the hearing the judge granted final care orders for all three children, and yet over time the promises of the social workers and appointed guardians dissolved into disappointment after none of the proposed programmes materialised.
Having been presented to the Court of Appeal, it was held that the local authority had abjectly failed on its promise to provide care, but was acquitted under arguments of monetary cuts and a reduction in public resources, whereupon the mother contended that the court had erred in not considering her suggestions for interim care orders and the children’s guardian sought relief under ss.6 (Acts of public authorities) and 7 (Proceedings) of the Human Rights Act 1998 (HRA), however both arguments were dismissed.
Re W (Minors) (Care Order: Adequacy of Care Plan)
In this instance the welfare of two boys aged ten and twelve years of age rested upon the intervention of the mother’s grandparents, who themselves resided in the United States of America.
Having met overseas, the parents returned to live in the United Kingdom in order to marry before starting a family, however during the course of their childhood the boys had been subjected to numerous separations and reconciliations, and also spent considerable time living apart from one another while remaining in contact with both parents.
This chaotic existence had later given rise to questions concerning the ability of the parents to meet the needs of the children, in large part due to the deteriorating mental health of the mother, who had made insubstantial allegations against the father prior to the local authority applying for an emergency protection and interim care order.
Having established a care plan it was agreed by the County Court that the two boys would be placed into foster care before the arrival of the American grandparents, who planned to live with them in the United Kingdom despite reservations by the judge that their migration would materialise, and that the proposed therapy and marital management programmes would succeed, with particular emphasis on the mother’s diagnosed imbalances.
Upon challenge by the local authority in the Court of Appeal it was held that the care plan had been prematurely executed, and so the final care order was replaced with an interim order, while referring the case back to the awarding judge, an alteration which instigated reluctance by the grandparents to assume care of the boys unless under definite conditions. This prompted the reissue of a final care order with the full support of the parents, albeit in argument that they would apply to have the order discharged if their reunion was not provided in due course.
For clarity, under s.33 of the Children Act 1989 an acting local authority is granted parental responsibility (PR) for the duration of the assigned care order and can therefore determine the rights of the parents in relation to their children, while under s.100, the courts are expressly denied interference with those powers, however, s.6 of the HRA 1998 prevents a public authority from acting in a way that proves incompatible with a Convention right, while s.7 allows those victim of such actions, to bring proceedings against them.
S.8 (Judicial remedies) further enables the court to decide how best to provide legal remedy, or issue powers appropriate to its jurisdiction, which translates that where a local authority infringes art.8 of the HRA 1998 (Right to respect for private and family life) the deciding court can lawfully grant relief to those affected.
More interestingly, under the Review of Children’s Cases Regulations 1991 a local authority is required to consider the possible discharge of a care order on a six-monthly basis (subject to the views and consideration of the child(ren) and parents) while s.3(1) of the Children Act 1989 provides that parents retain the same rights, duties, powers and parental responsibilities as before an order was made, therefore their civil rights are affected, but not wholly compromised.
Finally, s.38 of the Children Act 1989 provides the court with powers to issue interim care orders in order to provide safety and security for vulnerable children for a determined period.
With both cases put before the House of Lords it became evident that in the first case the Court of Appeal had introduced a ‘starring’ mechanism as a means of preventing failure to implement care plans, whereby each plan was marked with progressive indicators that when not reached in the agreed period triggered automatic rights to reactivate the consultation process in order to avoid missed or overlooked public body requirements.
In the second case no such mechanism had been used, which had prompted intervention by the Secretary of State for Health, who received claims that ss.31, 33(3),38 and 100 of the Children Act 1989 were incompatible with existing Convention rights, while the local authority had appealed against the alteration of the care order and the broadening of judicial powers to award interim orders.
Examination of the Children Act 1989 and suggested incompatibility with Convention rights after the introduction of ‘starring’ drew immediate reference to the overlapping rights of courts when care orders are in effect, and while the House appreciated that the inventive use of rudimentary measures was a decision privy to Parliament, and that while there was stark evidence to support legislative reform, it was simply ultra vires for the Appeal Court to act without restraint.
An so with regard to the overextension of the interim care orders when faced with an ill-prepared care plan, the House upheld the appeals bought by both a ministerial and public body, while taking time to remind the parties that:
“Where a care order is made the responsibility for the child’s care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority’s discharge of its responsibilities. That was the intention of Parliament.”
Loss of chance, the balance of probabilities, and legislative reform become the focus of discussion in a matter bearing the superficial hallmarks of a linear tort claim, but that upon closer inspection, was approached in all the wrongways.
Having consulted his local GP with concerns over a swollen lump beneath his armpit, the appellant was told that it represented little more than a lipoma (soft fatty lumps), and that no further investigation was needed, however a year later the appellant relocated before presenting the same symptoms to his new doctor, who despite reaching a similar conclusion, took the step of referring him to submit a biopsy for examination.
Upon inspection of the sample it was quickly established that far from being harmless, the appellant was in fact suffering from Anaplastic Lymphoma Kinase Negative, the more aggressive of two types of non-Hodgkin’s lymphoma, in which the typical prognosis for this complex form of cancer offered a life expectancy of little more than ten years following successful observation and established treatment.
Unfortunately due to the protracted period between diagnoses, the appellant had missed any opportunity to undergo preliminary and less invasive therapies, while the infection had since spread across his chest, resulting in increased pain and suffering and an inability to continue working or have any reasonable quality of daily life without a constant fear of death.
When seeking remedy for the negligent breach of his original doctor, the appellant argued that while his initial chances of a relapse-free ten years were estimated as resting between forty-two to forty-five percent, the abject failure to properly diagnose or even refer the appellant for examination had reduced that figure to around twenty-five percent, along with the increased levels of pain and discomfort suffered during the time between healthcare professionals.
Relying upon the maxim ‘damages are the gist of negligence’ the appellant adopted an unorthodox approach to damages based upon his loss of chance of recovery, as opposed to a straightforward claim for full damages in direct relation to the injurious nature of the tumour growth and accompanying pain, while arguing that had the disease been correctly identified it might notperhaps have occurred.
Using expert testimony and statistical data to contest the degree to which the appellant was entitled to damages, the first court held that there was inconclusive evidence to suggest that a delay in diagnosis would have made any lasting impact upon the progression of the cancer, and so no greater an outcome could be found to exist besides than the one faced by the appellant during trial.
Upon challenge the Court of Appeal upheld the previous judgment, and so it was presented to the House of Lords, who examined the facts surrounding Hotson v East Berkshire Area Health Authority, wherein the House had been able to distinguish the nature of this particular medical error, and thereby evaluate the argument that the grievousness of miscalculation around terminal illness ought not to rely upon the balance of probabilities, but should instead rest upon any dramatic reduction in life expectancy when such an oversight was avoidable through proper conduct and the rigorous application of research.
By close scrutiny of the statistical data the House further noted that despite the forecasted levels of survival, the patient had since confounded the figures through his continued lifespan in the aftermath of intense chemotherapy, which by extension defeated his theory that had the treatment been undertaken earlier he would have been alive longer than expected, and so dismissed the appeal while explaining that:
“Doctors do not cause the presenting disease. If they negligently fail to diagnose and treat it, it is not enough to show that a claimant’s disease has got worse during the period of delay. It has to be shown that treating it earlier would have prevented that happening, at least for the time being.”
In what was to become an overly protracted and yet hotly debated case, the question of trust instrument validity and the limiting scope of trust powers, fell upon the English courts to answer, when what appeared at the time was judicial wisdom, later proved a confused doctrine that polluted similar cases in the years following its declaration.
Having become the director of a highly successful M&E company first established in 1927, and as a man of inherent providence, the deceased had taken it upon himself to draft a trust deed in 1941, that would allow his current and former employees to benefit from financial gifts on a potentially recurring basis, while in addition to this their immediate relatives were also to enjoy similar windfalls, as was contained in clause 9(a) of the trust, which read that:
“The trustees shall apply the net income of the fund in making at their absolute discretion grants to or for benefit of any of the officers and employees or ex-officers or ex-employees of the company or to any relatives or dependants of any such persons in such amounts at such times and on such conditions (if any) as they think fit and any such grant may at their discretion be made by payment to the beneficiary or to any institution or person to be applied for his or her benefit and in the latter case the trustees shall be under no obligation to see the application of the money…”
However upon his death in 1960, the appointed executors notified the trustees that the trust was void for uncertainty, as it would be almost impossible to distinguish one employee from another, never mind any relatives known to exist at the time of his passing, which was a position adopted in light of the company’s growth from 110 to 1,300 employees during the preceding years.
Commencing by way of an originating summons in 1967, the trustees argued that clause 9(a) merely represented a power to distribute funds to a class of beneficiaries, while the executors held that the use of the word ‘shall’ created instead, a mandatory trust that once unable to be fully executed, would nullify itself and thus fall within the residual estate.
In the first instance, the Court of Chancery examined the construction of the deed, and found that due to discretionary nature of clause 9(a), the trust conferred a power upon the trustees, and not an immutable instruction that once unfulfilled, rendered the trust void for uncertainty; a statement upon which the executors challenged the findings in the Court of Appeal.
Here, the court referred to In re Gestetner Settlement, in which Harman J had held that when ascertaining the exactness of a trust deed beneficiary class:
“[T]he trustees must worry their heads to survey the world from China to Peru…”
Which was to suggest an immense undertaking for trustees, unless it could be proven that the deed conferred a mere power, in which case, reasonable certainty of the beneficiary class ought then be shown. In light of this precedent, the court subsequently held that as before, the context of clause 9(a) was such that the trustees were afforded discretionary powers, and so held that:
“[C]lause 9 of the deed may properly be construed as the judge did, by holding that it creates a power and not a trust…”
At which point the executors along with the deceased’s widow, pursued their argument before the House of Lords on grounds that clause 9(a) represented a mandatory trust, and that as such, the ruling in the recent Inland Revenue Commissioners v Broadway Cottages directed the decision of the court when it held that:
“[A] trust for such members of a given class of objects as the trustees shall select is void for uncertainty, unless the whole range of objects eligible for selection is ascertained or capable of ascertainment…”
Which it was argued, was now impossible due to the vast number of both former and existing employees, causal employees and extended family members; a contention that left the House allowing the appeal by way of reference back to the Chancery Court for greater clarification, while also holding that in their opinion:
“[T]he trust is valid if it can be said with certainty that any given individual is or is not a member of the class.”
Once again in 1972, the court reviewed the position on the wording, and thereby meaning of trusts and powers, along with the validity of the trust in relation to s.164 of the Law of Property Act 1925, which stipulated that:
“1. No person may by any instrument or otherwise settle or dispose of any property in such manner that the income thereof shall…be wholly or partially accumulated for any longer period than one of the following…(a)the life of the grantor or settlor; or (b) a term of twenty one years from the death of the grantor, settlor or testator…”
And so with a thoughtful, albeit exhaustible, examination of the deed, the court held that a discretionary trust did exist, and that despite the 31 years since its execution, such an instrument was valid when called into purpose, which echoed the sentiment of the House when the court further held that the trust was valid on the principle that there were sufficient company records to show, and thereby establish, who was reasonably eligible for the benefit of the funds when distributed by the trustees, upon which the executors challenged the judgment before the Court of Appeal one final time.
Here, the executors argued that unless an individual could not be proven as falling outside the scope of the trust, the trust must fail, while the court reasoned that while operating within the bounds of practicality, the trustees had shown that they were equipped to trace staff records back to the inception of the company, and thereby allocate the majority of employees and their immediate relatives, whereupon the court conclusively dismissed the appeal, while simply holding that:
“[A] trust for selection will not fail simply because the whole range of objects cannot be ascertained.”
Interference with the performance of a contract, and assistance in a breach of trust, lie central to a matter involving two solicitors and a property developer, whose triangulated relationship resulted in financial abuses and ethical ignorance by those expected to conduct themselves with nothing less than self-discipline and professionalism.
Having owned and operated a number of business ventures, the respondent had ventured to obtain a business loan for the purposes of acquiring further properties, however at the time of inquiry his bank was unable to commit to lending the money, therefore he made contact with the plaintiffs, so as to borrow the sum of £1m, to which the plaintiffs requested that the loan agreement be underwritten by a qualified solicitor.
Upon consultation with the appellant his request was denied, and so with time against him he approached another law practice, whose second partner had a business history with the defendant, and through which the partner had become liable to the defendant to the sum of £1.5m.
In order to repay the debt owed, the partner then agreed to become principle debtor to the loan by way of its underwriting, while keeping the truth of their arrangement from the plaintiffs, and so when signing the loan agreement, they were now legally subject to its terms, in which sections 1 and 2 read:
“1. The loan moneys will be retained by us until such time as they are applied in the acquisition of property on behalf of our client.
2. The loan moneys will be utilised solely for the acquisition of property on behalf of our client and for no other purpose.”
While s. 4 further read that:
“We confirm that this undertaking is given by us in the course of our business as solicitors and in the context of an underlying transaction on behalf of our clients which is part of our usual business as solicitors.”
However once the money had been loaned, the partner contacted the appellant, and asked that he retain the funds in a client account until such time that the plaintiff required it. While both solicitors were aware that such a transfer was tantamount to a breach of s.1, the money was nonetheless accepted and then released by the appellant to the respondent with no proof that any of the money was being used for the purchase of properties, as per s. 2 of the agreement.
At the point of initial litigation, the plaintiffs sued for recovery of the funds following non-payment by the now dissolved partner on grounds of breach of trust, and for dishonest assistance on the part of the appellant when holding the money and paying it to the respondent upon his request, despite knowledge of the initial breach prior to his receipt of the funds from the partner.
While in the first instance the Court of the Queen’s Bench dismissed the claim on grounds that the appellant had merely acted recklessly in the course of his duties, the Court of Appeal reversed the judgment on grounds that the appellant had knowingly received money destined not for the purchase of property, and thereby in breach of s.2, and that he had wilfully closed his eyes to the facts when agreeing to both hold and transfer the funds to the respondent.
Upon appeal to the House of Lords, the appellant argued that his involvement in the matter was certainly naive and remiss but in no way unlawful, and so the House agreed to examine the details of the case for the purposes of clarity.
Turning first to Royal Brunei Airlines Sdn Bhd v Tan, the House noted that the Court of Appeal had explained how:
“A fraudulent and dishonest design is not confined to personal gain. It is sufficient if the stranger knowingly assists in the use of trust property in a way which is not permitted by the trust.”
And that in its simplest form:
“[A] trust is a relationship which exists when one person holds property on behalf of another. If, for his own purposes, a third party deliberately interferes in that relationship by assisting the trustee in depriving the beneficiary of the property held for him by the trustee, the beneficiary should be able to look for recompense to the third party as well as the trustee.”
Thus in its conclusion, the court had held that:
“[D]ishonesty is a necessary ingredient of accessory liability. It is also a sufficient ingredient. A liability in equity to make good resulting loss attaches to a person who dishonestly procures or assists in a breach of trust or fiduciary obligation.”
And so it was clear that when the appellant acquiesced to the instructions of the partner, he had, whether intentionally or not, become complicit in the misuse of what was held to be trust property of the plaintiffs, while the House also also referred to Gilbert v Gonard in which the Court of Chancery had also held that:
“[I]f one person makes a payment to another for a certain purpose, and that person takes the money knowing that it is for that purpose, he must apply it to the purpose for which it was given. He may decline to take it if he likes; but if he chooses to accept the money tendered for a particular purpose, it is his duty, and there is a legal obligation on him, to apply it for that purpose.”
Although the House drew the distinction that unlike civil courts, equity relies less upon the mens rea of a man and more on his behaviour, and while the appeal was founded upon a breach of trust and dishonest assistance, there was insufficient evidence to suggest certainty as to the mind of the appellant when carrying out his part of the agreement. However, the House did conclusively note that under the circumstances there was ample grounds for a liability under wrongful interference with a contract and for assisting in a breach of trust, therefore the court of appeal judgment was upheld and reversed in part, while the House held that:
“[E]quity looks to a man’s conduct, not to his state of mind.”
“Where a third party with knowledge of a contract has dealings with the contract breaker which the third party knows will amount to a breach of contract and damage results, he commits an actionable interference with the contract…”
Jury instruction for the defence of insanity dates back as far as the common law of England, however in 1843 the time had arrived for a revision and clarification of what qualified as insanity, and how best to grant the jurors scope to reach a credible conclusion, as was shown in this now landmark case.
In January of that year, Daniel M’Naghten was indicted before the Middlesex Central Criminal Court on grounds that he had wilfully and with malice aforethought, murdered another man when shooting him in the back with a pistol.
During the trial, medical evidence presented was such that suggested a man was of unsound mind when afflicted with morbid delusions capable of rendering him unable to determine right from wrong at the time his act was committed, to which the defendant claimed such weakness as a defence.
When instructing the jury in The Queen v M’Naghten, Tindal LJ expressed that:
“The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.”
Upon which the jury returned a not guilty verdict and the matter was escalated to the House of Lords so as to explore both the existing legal position on insanity, along with the optimal and most effective use of jury instruction where cases required it.
By addressing a number of esteemed judges, the House requested clarification on the following five questions:
What was the common law position on crimes involving insane delusions under a variation of circumstances ranging from simple offences to revenge or acts of public interest?
What were the correct jury instructions in such matters?
How much freedom should be given to jurors when assessing the defendant’s state of mind?
Should a defendant shown to be delusional be acquitted of whatever crime is under discussion?
Can a medical professional provide a credible and measured opinion of a defendant whose acts occurred both out of sight and mind of those providing such testimony?
To which the judges tentatively answered:
1. “To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong.”
2. “[E]very man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
3. “[T]here are no terms which the Judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the discretion of the Judge, are proper to assist the jury in coming to a right conclusion as to the guilt of the accused.”
4.“[I]f under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”
5. “[T]he medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.”
To which the House expressed its sincere gratitude at placing the judges in such a position that might otherwise precluded them from venturing an answer to questions as broad as they were narrow.
While s.20 of the Offences Against the Person Act 1861 provides that certain physical acts of violence are grounds for a conviction of grievous bodily harm, the psychological fear of impending violence through the use of words or silence, can prove difficult to sustain as a claim for assault occasioning actual bodily harm. However on this occasion, the House of Lords unequivocally clarified that both words and actions are equally damaging to their intended victims.
In this matter, the appellant had been tried and convicted of assault occasioning actual bodily harm under s.47 of the 1861 Act, which reads that:
“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm shall be liable…to be kept in Penal Servitude for the Term of Three Years…”
Having repeatedly called three women during the night on a number of occasions, and each time remaining silent or breathing heavily, his actions had the cumulative effect of causing their prolonged psychiatric distress by way of palpitations, cold sweats, tearfulness, headaches, anxiety, insomnia, agoraphobia, dizziness, nervousness and breathing difficulties.
And so in the first instance, the Newport Crown Court had found him guilty and passed sentence accordingly, upon which the appellant challenged the judgment in the Court of Appeal, who upheld the decision while holding that:
“[T]he making of a telephone call followed by silence, or a series of telephone calls, is capable of amounting to a relevant act for the purposes of section 47 of the Offences against the Person Act 1861.”
Granted leave to appeal, the appellant argued his case again before the House of Lords, who reexamined the facts and statutory position in order to reevaluate the scope of s.47, both in terms of actual bodily harm and that of common assault.
Referring first to R v Chan-Fook, the House noted that the Court of Appeals had previously held that:
“[T]he phrase “actual bodily harm” is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition.”
Yet it was also evident from their previous judgment that no specific mention had been made of assault, and so turning to Fagan v Commissioner of Metropolitan Police, the House also noted how the Court of the Queen’s Bench had held that:
“An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence.”
Thus the House held that wile the women were physically beyond the reach of the appellant, there was simply no tenable grounds to assume that the appellant never intended to inflict violence upon them, particularly when using the words “I will be at your door in a minute or two” therefore the appeal was uniformly dismissed. In closing , the House further reminded the court that s.47 was still subject to the context in which it was applied, and that when determining the inclusion of assault, the court must remain vigilant to its arbitrary over inclusion to convictions, while more importantly holding that:
“The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done.”
While the doctrine of frustration relies upon the existence of an unforeseen and thus unexpected event, its design is not one that requires any element of blame in order to apply, as was seen in this case between a corporation and shipowner.
In August of 1836 the now appellants contracted to supply one of their steamships to the respondents for the purposes of transportation to a number of international sea ports by way of commercial enterprise. Having been used for the reasons agreed, the ship was later anchored over the Christmas period while awaiting further use until its return in January 1837.
Unfortunately while dockside the ship suffered an enormous explosion that sent the auxiliary boiler over one hundred and sixty four feet from its original position, while the primary boilers were forced backwards by the blast, all of which rendered the vessel inoperable and thereby unable to complete its journey to the respondents.
Having cited frustration of contract, the appellants looked to leave matters as they were, however the respondents argued that the explosion had arisen by way of negligence, and so damages were owed for the loss accrued.
First heard in the Court of the Kings Bench, the judge held that the appellants were merely unwitting victims of unforeseen circumstances, particularly when a Board of Trade Enquiry had failed to establish any liability in relation to the cause of the explosion, or any possible negligence shown by those working on the ship at the time; and so in closing the court held that:
“It is plain that it has not been established that they were guilty of negligence and there is no finding of any negligence. The worst finding against them is under the one heading of possibility of negligence.”
To which the respondents challenged the finding in the Court of Appeals, who awarded in their favour while holding that:
“A party prima facie guilty of a failure to perform his contract cannot escape under the plea of frustration, unless he proves that the frustration occurred without his default. There is no frustration in the legal sense unless he proves affirmatively that the cause was not brought into operation by his default.”
After being denied leave to appeal, the House of Lords Appeal Committee granted it so that the issue of liability could be afforded examined and conclusive clarification, and so the matter was once again given due discussion.
In the first instance Viscount Simon turned to Taylor v Caldwell in which the court held that:
“[I]n contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.”
While Viscount Maugham noted that in Hirji Muji v Cheong Yue Steamship Co Ltd the Privy Council held that:
“[W]hatever the consequences of the frustration may be upon the conduct of the parties, its legal effect does not depend on their intention or their opinions, or even knowledge, as to the event, which has brought this about, but on its occurrence in such circumstances as show it to be inconsistent with further prosecution of the adventure.”
Before illustrating that in Bank Line Ltd v Arthur Capel & Co the House of Lords had held that:
“I think it is now well settled that the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side. Reliance cannot be placed on a self-induced frustration; indeed, such conduct might give the other party the option to treat the contract as repudiated.”
And so it was that a uniform House held how the appeal court judgment was to be reversed on the very simple yet clear principle that:
“[W]hen frustration in the legal sense occurs, it does not merely provide one party with a defence in an action brought by the other. It kills the contract itself and discharges both parties automatically.”
While the ‘right-to-buy’ scheme allows council tenants to purchase their properties for determinable discounts, there are additional safeguards designed to prevent administrative vacillation between the two parties to contract. On this occasion, a local authority found itself on the wrong end of such an agreement, while the tenant was free to enjoy the fruits of an organised purchase.
In the autumn of 1999, a tenant served a right-to-buy notice under s.122 of the Housing Act 1988 for the purchase of his flat for a discounted price of £17,000. Under s.124 of the same Act, a landlord is required to respond in kind so as to allow the process to begin.
For one reason or another, the appellants chose not to acknowledge the respondent’s submission, on grounds that they believed he had withdrawn it, during which time further legislation was enacted so as to penalise landlords delaying the purchase under s.153A(1) (as inserted by the Housing Act 1985) through a ‘notice of delay’.
On 24 March 2003 the respondent issued such a notice, whereupon the appellants again failed to respond with a counter-notice, at which point s.153B of the 1988 Act further allowed a tenant to submit an ‘operative notice of delay’, thereby converting any paid rents into purchase contribution for the period between the notice of delay and the date of the as yet undelivered counter notice.
Following a declaration by the respondent on 22 June 2004 of the appellant’s failure to provide counter-notice, the parties went to court, during which the respondent was finally granted his s.124 counter-notice by the appellants on 2 July 2004, thus bringing to an end the period in which s.153B of the 1988 Act was in effect.
At the point of purchase, the effects of s.153B were left unresolved, at which point the local authority granted the respondent the right to pursue remedy through an appeal. It was thus contended to the Court that during the period between 24 March 2003 and 2 July 2004, sufficient rent had been paid so as to cover the £17,000 owed for the purchase of the flat, therefore no money was owed by the respondent, an argument supported by the Court, and one resulting in the appellants repaying the £17,000 paid with interest.
Taken to the House of Lords, the appellants argued that the respondent had relied upon housing benefits for his rent payments, and that as no money was passed between the respondent and the appellants, there was no evidence that any payment had been made nor received, as under those conditions a reduction in rent constituted the effect of such benefits, as opposed to an actual receipt of funds.
With examination of the Social Security Administration Act 1992, the House established that since its inception, Parliament had provided that under ss.140A to 140G, housing benefit was almost entirely subsidised through central government and not the local authorities, therefore despite any argument to the contrary, some form of payments were in effect, while for contextual purposes, the words of Lord Evershed MR in White v Elmdene Estates Ltd reminded that:
“[T]he word ‘payment’ in itself is one which, in an appropriate context, may cover many ways of discharging obligations.”
It was for this reason that the House upheld that regardless of exactly how the rent was realised, the effects of s.153B of the Housing Act 1988 existed to avoid the very problem the appellants had created, before dismissing the appeal and upholding the judgment of the Court.