Almost every flat lease requires tenants to avoid activities that might cause damage, or annoyance or nuisance to fellow residents. One such clause became the focus of a case in which a couple who endured a series of water and sewage leaks into their basement flat won substantial damages from their upstairs neighbours.
The leakage incidents, some more serious than others, were spread over a 12-year period and were largely caused by deplorable workmanship in internal renovation works carried out to the upstairs flat. Pipes serving a Jacuzzi, a bath and a toilet all leaked intermittently and the downstairs tenants, who had logged more than 80 incidents, felt obliged to move out for a time.
The upstairs tenants argued that many of the problems stemmed from existing damp in the basement flat and were a consequence of the somewhat dilapidated condition of the whole building. It was accepted that they were not responsible for all the water damage, but a judge found that much of it was a direct consequence of their failure to employ properly qualified tradesmen to work on their flat. They had breached a covenant in their lease and were ordered to pay £15,600 in damages to the downstairs tenants.
Kidder & Anr v Bonneau & Anr. Case Number: AMA03CL468
The leakage incidents, some more serious than others, were spread over a 12-year period and were largely caused by deplorable workmanship in internal renovation works carried out to the upstairs flat. Pipes serving a Jacuzzi, a bath and a toilet all leaked intermittently and the downstairs tenants, who had logged more than 80 incidents, felt obliged to move out for a time.
The upstairs tenants argued that many of the problems stemmed from existing damp in the basement flat and were a consequence of the somewhat dilapidated condition of the whole building. It was accepted that they were not responsible for all the water damage, but a judge found that much of it was a direct consequence of their failure to employ properly qualified tradesmen to work on their flat. They had breached a covenant in their lease and were ordered to pay £15,600 in damages to the downstairs tenants.
Kidder & Anr v Bonneau & Anr. Case Number: AMA03CL468
Many people do dangerous jobs, but employers are required by law to do all in their power to minimise risks, and the consequences of failing to do so can be severe. In one case, an equipment maintenance company was served with an improvement notice under the Health and Safety at Work etc. Act 1974 after a near-fatal accident.
A worker suffered catastrophic injuries when he fell through the floor of the cab of a straddle carrier that was used to shift lorry containers and fell 14 metres to the ground. A panel had been removed from the floor during maintenance work and, although a sign had been put in place indicating that the straddle carrier was not in use, it did not prevent access and was inadequate and misleading.
Following an investigation by a health and safety officer, the man's employer was served with the notice, which required various systemic and physical improvements to be made that were designed to eliminate the risk of a recurrence. The employer appealed against the notice to an Employment Tribunal (ET).
The employer's staff worked in the same yard as others who were employed by another company and it was asserted that the latter was to blame for the creation of the hazard. The employer argued that it did have a system in place that would have prevented the accident victim from gaining access to the cab.
In dismissing the appeal, however, the ET noted that both companies' employees had worked together in close proximity and the baton of responsibility for various tasks had been passed between them on an ad hoc basis. That had led to confusion and increased risk on the site and the employer's assertion that it was not at fault was not supported by evidence. The officer had reasonably formed the view that the employer had contravened one or more health and safety rules and that such contravention was likely to continue or be repeated.
TMF Dordon Limited v Nayar (Health and Safety Officer). Case Number 1303328/2016
A worker suffered catastrophic injuries when he fell through the floor of the cab of a straddle carrier that was used to shift lorry containers and fell 14 metres to the ground. A panel had been removed from the floor during maintenance work and, although a sign had been put in place indicating that the straddle carrier was not in use, it did not prevent access and was inadequate and misleading.
Following an investigation by a health and safety officer, the man's employer was served with the notice, which required various systemic and physical improvements to be made that were designed to eliminate the risk of a recurrence. The employer appealed against the notice to an Employment Tribunal (ET).
The employer's staff worked in the same yard as others who were employed by another company and it was asserted that the latter was to blame for the creation of the hazard. The employer argued that it did have a system in place that would have prevented the accident victim from gaining access to the cab.
In dismissing the appeal, however, the ET noted that both companies' employees had worked together in close proximity and the baton of responsibility for various tasks had been passed between them on an ad hoc basis. That had led to confusion and increased risk on the site and the employer's assertion that it was not at fault was not supported by evidence. The officer had reasonably formed the view that the employer had contravened one or more health and safety rules and that such contravention was likely to continue or be repeated.
TMF Dordon Limited v Nayar (Health and Safety Officer). Case Number 1303328/2016
Business partnerships can be created orally or by conduct indicating that an accord has been reached. However, as one case concerning a troubled medical practice showed, it is always wise to have such agreements professionally drafted at the outset.
The principal of a medical practice had entered into partnership with another GP under a written agreement. Three other doctors also joined the practice soon afterwards. Although negotiations for a fresh partnership agreement between all five doctors continued for some time, no formal document was ever signed.
Following a dispute with the principal, the GP went off sick, suffering from anxiety. On his return, he was prevented from seeing patients or accessing medical records. The GP launched proceedings, alleging that the principal had breached the agreement, and obtained a temporary injunction that restrained the principal from preventing him from practising as a GP at the surgery they shared.
Following a fuller hearing of the matter, however, a judge refused to grant the GP a permanent injunction. That was on the basis that the original partnership between the GP and the principal had been dissolved when the other three doctors joined the practice. At that point, and in the absence of a written agreement, a partnership at will had come into effect that included all five doctors. That partnership had also come to an end by the service of a notice of dissolution on the GP.
In rejecting the GP's challenge to that decision, the Court of Appeal found that the judge had made no error of law. The partnership at will had superseded the original partnership and the fact that the former had not been reduced to writing did not undermine that conclusion. All five doctors were looking forward to reaching a new agreement, the terms of which were under negotiation. There was also no evidence that the three doctors who later joined the practice intended to be bound by the agreement or that all of them had even had sight of it.
Cheema v Jones & Ors. Case Number: A2/2017/1442
The principal of a medical practice had entered into partnership with another GP under a written agreement. Three other doctors also joined the practice soon afterwards. Although negotiations for a fresh partnership agreement between all five doctors continued for some time, no formal document was ever signed.
Following a dispute with the principal, the GP went off sick, suffering from anxiety. On his return, he was prevented from seeing patients or accessing medical records. The GP launched proceedings, alleging that the principal had breached the agreement, and obtained a temporary injunction that restrained the principal from preventing him from practising as a GP at the surgery they shared.
Following a fuller hearing of the matter, however, a judge refused to grant the GP a permanent injunction. That was on the basis that the original partnership between the GP and the principal had been dissolved when the other three doctors joined the practice. At that point, and in the absence of a written agreement, a partnership at will had come into effect that included all five doctors. That partnership had also come to an end by the service of a notice of dissolution on the GP.
In rejecting the GP's challenge to that decision, the Court of Appeal found that the judge had made no error of law. The partnership at will had superseded the original partnership and the fact that the former had not been reduced to writing did not undermine that conclusion. All five doctors were looking forward to reaching a new agreement, the terms of which were under negotiation. There was also no evidence that the three doctors who later joined the practice intended to be bound by the agreement or that all of them had even had sight of it.
Cheema v Jones & Ors. Case Number: A2/2017/1442
Even the courts can fall victim to fraud and certainly did so in one case in which a disbarred barrister deceived family judges on a wholesale basis into believing that they had jurisdiction to entertain divorce petitions lodged by foreign nationals.
The case concerned 20 divorce petitions and one to dissolve a civil partnership. Some of them had proceeded to the point where decrees nisi or absolute were granted. The fraud was detected after it emerged that, in each case, the address of one or other of the divorcing parties was given as the same house in London.
That address belonged to members of the family of a former barrister who had been disbarred after being convicted of benefit frauds. Forensic analysis of the petitions suggested to varying degrees of probability that, in some cases, he had forged the signatures or sworn statements of the petitioner, the respondent, or both.
After proceedings were launched by the Queen's Proctor under the Matrimonial Causes Act 1973, the High Court had no hesitation in accepting that the petitions were tainted by deception. Those petitions that were still at an early stage were dismissed and decrees granted in respect of others were set aside. The disbarred barrister was ordered to pay the costs of the case on the punitive indemnity basis.
Grasso v Naik. Case Number: ZC15D03263
The case concerned 20 divorce petitions and one to dissolve a civil partnership. Some of them had proceeded to the point where decrees nisi or absolute were granted. The fraud was detected after it emerged that, in each case, the address of one or other of the divorcing parties was given as the same house in London.
That address belonged to members of the family of a former barrister who had been disbarred after being convicted of benefit frauds. Forensic analysis of the petitions suggested to varying degrees of probability that, in some cases, he had forged the signatures or sworn statements of the petitioner, the respondent, or both.
After proceedings were launched by the Queen's Proctor under the Matrimonial Causes Act 1973, the High Court had no hesitation in accepting that the petitions were tainted by deception. Those petitions that were still at an early stage were dismissed and decrees granted in respect of others were set aside. The disbarred barrister was ordered to pay the costs of the case on the punitive indemnity basis.
Grasso v Naik. Case Number: ZC15D03263
Fires can cause enormous damage in just a few minutes, but uncovering where responsibility for them lies is a laborious task that can take years. In one case, the High Court pointed the finger of blame at an electrical fault in a drinks vending machine almost eight years after a blaze gutted a college building.
The college sued the company that had installed the machine. However, the company argued that the true cause of the fire was an electrical fault in the building's roof void. Both theories were backed up by evidence from eminent fire investigation experts who were able to view CCTV footage of the fire breaking out.
Following a five-day trial, the Court preferred the college's evidence and found on the balance of probabilities that the vending machine was the cause of the fire. The ageing machine had not been maintained often or carefully enough and it was not sufficiently safe or durable to be of satisfactory quality. The college was awarded £265,008 in damages, before interest.
Stoke-on-Trent College v Pelican Rouge Coffee Solutions Group Limited. Case Number: B90MA096
The college sued the company that had installed the machine. However, the company argued that the true cause of the fire was an electrical fault in the building's roof void. Both theories were backed up by evidence from eminent fire investigation experts who were able to view CCTV footage of the fire breaking out.
Following a five-day trial, the Court preferred the college's evidence and found on the balance of probabilities that the vending machine was the cause of the fire. The ageing machine had not been maintained often or carefully enough and it was not sufficiently safe or durable to be of satisfactory quality. The college was awarded £265,008 in damages, before interest.
Stoke-on-Trent College v Pelican Rouge Coffee Solutions Group Limited. Case Number: B90MA096
Having an uncomplaining nature is admirable but, if you are concerned that you have suffered a wrong, or are in danger of doing so, any delay in seeking legal advice can have grave consequences. That was certainly so in one case in which a farmer's daughter found herself facing eviction from the family's 100-acre holding.
The dairy farm, which was owned by the woman's 68-year old father, had suffered a series of blows, not least a reduction in milk yields and the death of 100 cows due to soil contamination. The land was mortgaged in order to secure the farm's debts and the lender was ultimately granted a possession order on the basis that it was owed over £670,000.
Over a period of more than four years, execution of the order was stayed on various grounds. Shortly before it was due to be finally enforced, the daughter claimed for the first time that she had an equitable interest in the land. She argued that she had ploughed her own money into attempts to save the farm and had worked hard on the land for years.
It was also submitted that her father had promised her that the land would one day be hers and that her interest overrode that of the lender because she was not a party to the mortgage and was in actual occupation of the farm. Her arguments succeeded before a judge and, subject to certain conditions, she was joined as a party to the possession proceedings and a further stay of execution was granted.
In upholding the lender's challenge to that ruling, the Court of Appeal found that the daughter was guilty of inordinate and unexplained delay in asserting an interest in the land. The judge had also applied the wrong test when assessing the strength of her claim. Exercising its own discretion, the Court removed the stay.
HSBC Bank PLC v Robinson & Anr. Case Number: (2017) NICA 64
The dairy farm, which was owned by the woman's 68-year old father, had suffered a series of blows, not least a reduction in milk yields and the death of 100 cows due to soil contamination. The land was mortgaged in order to secure the farm's debts and the lender was ultimately granted a possession order on the basis that it was owed over £670,000.
Over a period of more than four years, execution of the order was stayed on various grounds. Shortly before it was due to be finally enforced, the daughter claimed for the first time that she had an equitable interest in the land. She argued that she had ploughed her own money into attempts to save the farm and had worked hard on the land for years.
It was also submitted that her father had promised her that the land would one day be hers and that her interest overrode that of the lender because she was not a party to the mortgage and was in actual occupation of the farm. Her arguments succeeded before a judge and, subject to certain conditions, she was joined as a party to the possession proceedings and a further stay of execution was granted.
In upholding the lender's challenge to that ruling, the Court of Appeal found that the daughter was guilty of inordinate and unexplained delay in asserting an interest in the land. The judge had also applied the wrong test when assessing the strength of her claim. Exercising its own discretion, the Court removed the stay.
HSBC Bank PLC v Robinson & Anr. Case Number: (2017) NICA 64
Just like property buyers, those who purchase businesses are entitled to have their questions honestly answered by the vendors before a price is agreed. In one case where that sadly did not happen, a woman who bought an ill-fated dental practice won the right to damages from the sellers.
Before she purchased the practice for £625,000, the woman had been informed by the sellers in response to formal pre-transaction inquiries conducted through solicitors that its £404,000-a-year turnover was entirely from private patients. The sellers also expressly warranted that the practice's financial position had not materially deteriorated during the preceding 10-month period. The price the woman paid for the business included £300,000 in respect of its goodwill.
In truth, the practice's income from private patients was very much less than the sellers had stated. The reality was that much of its income came from NHS patients, but that all that business would be lost following the departure from the practice of all the dentists who were contracted to do NHS work.
After the woman launched proceedings, the High Court found that the sellers dishonestly intended to convey the false impression that the practice was wholly private. They also knew that, had she been aware of the true position, it would likely have had a significant impact on the price she would agree to pay. There was also a breach of the warranty, in that the trading position of the practice had markedly worsened during the pre-sale period. Although the amount of the woman's damages remained to be calculated, she was entitled to a six-figure sum.
Dhaliwal v Hussain & Anr. Case Number: A30BM001
Before she purchased the practice for £625,000, the woman had been informed by the sellers in response to formal pre-transaction inquiries conducted through solicitors that its £404,000-a-year turnover was entirely from private patients. The sellers also expressly warranted that the practice's financial position had not materially deteriorated during the preceding 10-month period. The price the woman paid for the business included £300,000 in respect of its goodwill.
In truth, the practice's income from private patients was very much less than the sellers had stated. The reality was that much of its income came from NHS patients, but that all that business would be lost following the departure from the practice of all the dentists who were contracted to do NHS work.
After the woman launched proceedings, the High Court found that the sellers dishonestly intended to convey the false impression that the practice was wholly private. They also knew that, had she been aware of the true position, it would likely have had a significant impact on the price she would agree to pay. There was also a breach of the warranty, in that the trading position of the practice had markedly worsened during the pre-sale period. Although the amount of the woman's damages remained to be calculated, she was entitled to a six-figure sum.
Dhaliwal v Hussain & Anr. Case Number: A30BM001
In a ground-breaking decision that underlined the primacy of European law, the Supreme Court has opened the way for a police officer to appeal against her dismissal to an Employment Tribunal (ET) on disability discrimination grounds.
The officer had suffered post-traumatic stress disorder after being assaulted whilst on duty. She was subsequently involved in an incident that led to her arrest and asserted that her behaviour on that occasion was related to her condition. However, following a disciplinary hearing before a Police Misconduct Panel (PMP), she was dismissed without notice.
She sought to appeal against her dismissal to an ET on the basis that the decision to sack her constituted disability discrimination and disability-related harassment. However, in a decision that was later upheld by the Employment Appeal Tribunal and the Court of Appeal, the ET struck out her claim on the basis that the PMP was a judicial body and that her claim was barred by the principle of judicial immunity.
In unanimously allowing her appeal, however, the Supreme Court noted that EU Council Directive 2000/78/EC confers on everyone, including police officers, a directly effective right to be treated equally in relation to employment and working conditions, including dismissals. The Directive took priority over domestic law and the UK was obliged to ensure that appropriate judicial and/or administrative procedures are available by which such rights can be enforced by effective, proportionate and dissuasive sanctions.
Allowing police officers to bring such claims before an ET would give them access to a wider range of remedies, including compensation, and the concept of judicial immunity should not be treated as a bar on complaints to ETs brought by police officers who claimed that they had been treated contrary to the Directive.
Reading additional words into Section 42(1) of the Equality Act 2010, so as to enable the officer to pursue her claim, was in line with the grain of the legislation and was warranted by the principle that domestic legislation should be interpreted in conformity with EU law. The officer's case was remitted to the ET for full consideration of her complaints.
P v Commissioner of Police of the Metropolis. Case Number: (2017) UKSC 65
The officer had suffered post-traumatic stress disorder after being assaulted whilst on duty. She was subsequently involved in an incident that led to her arrest and asserted that her behaviour on that occasion was related to her condition. However, following a disciplinary hearing before a Police Misconduct Panel (PMP), she was dismissed without notice.
She sought to appeal against her dismissal to an ET on the basis that the decision to sack her constituted disability discrimination and disability-related harassment. However, in a decision that was later upheld by the Employment Appeal Tribunal and the Court of Appeal, the ET struck out her claim on the basis that the PMP was a judicial body and that her claim was barred by the principle of judicial immunity.
In unanimously allowing her appeal, however, the Supreme Court noted that EU Council Directive 2000/78/EC confers on everyone, including police officers, a directly effective right to be treated equally in relation to employment and working conditions, including dismissals. The Directive took priority over domestic law and the UK was obliged to ensure that appropriate judicial and/or administrative procedures are available by which such rights can be enforced by effective, proportionate and dissuasive sanctions.
Allowing police officers to bring such claims before an ET would give them access to a wider range of remedies, including compensation, and the concept of judicial immunity should not be treated as a bar on complaints to ETs brought by police officers who claimed that they had been treated contrary to the Directive.
Reading additional words into Section 42(1) of the Equality Act 2010, so as to enable the officer to pursue her claim, was in line with the grain of the legislation and was warranted by the principle that domestic legislation should be interpreted in conformity with EU law. The officer's case was remitted to the ET for full consideration of her complaints.
P v Commissioner of Police of the Metropolis. Case Number: (2017) UKSC 65
Cross-border corporate mergers are subject to close judicial scrutiny so as to ensure that the interests of staff, shareholders and creditors are fully respected. One case concerning an English company's absorption of a German company showed that that supervisory role is anything but a rubber stamp.
Both companies provided information and communication technology services and were wholly owned subsidiaries of the same parent company. Both had only one director and no employees. It was proposed that the English company would wholly absorb the business of the German one and that, following the merger, the latter would be dissolved. The parent company would receive new shares in the English company in exchange for its shareholding in the German company.
High Court approval for the transaction was required by virtue of the Companies (Cross-Border Mergers) Regulations 2007. The Court was satisfied that the merger had been properly advertised in the London Gazette and that all other procedural requirements had been met. However, it expressed concern as to the position of creditors of the English company and asked searching questions in respect of the financial position of both companies.
They had each made operating losses in the recent past. In approving the merger, however, the Court was satisfied on the information provided that both companies were solvent. The net assets of the German company were appreciably more valuable than those of the English company and, if anything, the latter's creditors stood to benefit, rather than lose out, as a result of the merger.
In the Matter of Get Business Services Limited & Anr. Case Number: CR-2017-003920
Both companies provided information and communication technology services and were wholly owned subsidiaries of the same parent company. Both had only one director and no employees. It was proposed that the English company would wholly absorb the business of the German one and that, following the merger, the latter would be dissolved. The parent company would receive new shares in the English company in exchange for its shareholding in the German company.
High Court approval for the transaction was required by virtue of the Companies (Cross-Border Mergers) Regulations 2007. The Court was satisfied that the merger had been properly advertised in the London Gazette and that all other procedural requirements had been met. However, it expressed concern as to the position of creditors of the English company and asked searching questions in respect of the financial position of both companies.
They had each made operating losses in the recent past. In approving the merger, however, the Court was satisfied on the information provided that both companies were solvent. The net assets of the German company were appreciably more valuable than those of the English company and, if anything, the latter's creditors stood to benefit, rather than lose out, as a result of the merger.
In the Matter of Get Business Services Limited & Anr. Case Number: CR-2017-003920
In a landmark decision, the Supreme Court has upheld a damages claim brought by a woman who was subjected to physical and sexual abuse whilst in foster care as a child. In what will be viewed as an extension of the concept of vicarious liability, the Court found that the local authority that had taken her into care bore indirect legal responsibility for the foster parents actions.
During two separate placements, the first when she was aged just eight, the woman had been subjected to cruel physical abuse by a foster mother and sexual abuse by a foster father. Her compensation claim was dismissed by the High Court, and subsequently by the Court of Appeal, on the basis that the local authority was not vicariously liable for the abuse that she had endured.
In upholding her appeal by a majority, the Supreme Court noted that the council had carried out the recruitment, selection and training of the foster parents, paid their expenses and supervised their work. They were not carrying out a business of their own and their abuse of the woman was committed in the course of an activity carried out for the council's benefit.
The Court noted that placement of children with foster carers creates a relationship of authority and trust that renders the children concerned particularly vulnerable. The council enjoyed a significant degree of control over the foster parents' activities, exercising powers of approval, inspection and supervision. Micro-management of foster parents was not required for the imposition of vicarious liability.
Local authorities, unlike most foster parents, would have the financial means to pay compensation and there was no evidence to suggest that imposing vicarious liability would encourage councils to place children in institutional care, as a far more expensive alternative to fostering. Vicarious liability would not have been imposed had the woman been placed with her own parents and the Court found that its ruling did not impose unduly exacting standards on local authorities. The amount of the woman's compensation remains to be assessed.
Armes v Nottinghamshire County Council. Case Number: (2017) UKSC 60
During two separate placements, the first when she was aged just eight, the woman had been subjected to cruel physical abuse by a foster mother and sexual abuse by a foster father. Her compensation claim was dismissed by the High Court, and subsequently by the Court of Appeal, on the basis that the local authority was not vicariously liable for the abuse that she had endured.
In upholding her appeal by a majority, the Supreme Court noted that the council had carried out the recruitment, selection and training of the foster parents, paid their expenses and supervised their work. They were not carrying out a business of their own and their abuse of the woman was committed in the course of an activity carried out for the council's benefit.
The Court noted that placement of children with foster carers creates a relationship of authority and trust that renders the children concerned particularly vulnerable. The council enjoyed a significant degree of control over the foster parents' activities, exercising powers of approval, inspection and supervision. Micro-management of foster parents was not required for the imposition of vicarious liability.
Local authorities, unlike most foster parents, would have the financial means to pay compensation and there was no evidence to suggest that imposing vicarious liability would encourage councils to place children in institutional care, as a far more expensive alternative to fostering. Vicarious liability would not have been imposed had the woman been placed with her own parents and the Court found that its ruling did not impose unduly exacting standards on local authorities. The amount of the woman's compensation remains to be assessed.
Armes v Nottinghamshire County Council. Case Number: (2017) UKSC 60
