Judgment call 11 November

Administration of justice

PNM v (1) Times Newspapers Ltd; (2) Andrew Norfolk; (3) Newsquest (Oxfordshire and Wiltshire); (4) Ben Wilkinson Ltd 2013 WL 5338213 QBD Tugendhat J. 22 October 2013

In cases of alleged sexual abuse, a newspaper seeking to report a trial and the wider issues emerging from it could rely on the principle that reporting might encourage more witnesses to come forward without having any evidence to support such a likelihood. Such reports made an important contribution to the public knowledge and to debates about the administration of justice, all of which justified the identification of a suspect who had been arrested but never charged, even though naming him constituted curtailment of his right to respect for his private life.

Claim dismissed

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For the claimant PNM

One Brick Court’s Manuel Barca QC; One Brick Court’s Hannah Ready; Wells Burcombe Susan King

For the defendant (1) Times Newspapers Ltd; (3) Newsquest (Oxfordshire and Wiltshire)
5RB’s Adam Wolanski, instructed directly

Civil evidence

R. (on the application of Miranda) v Secretary of State for the Home Department 2013 WL 5730374 DC Laws LJ; Ouseley J; Openshaw J. 30 October 2013

 

It was unnecessary to order further disclosure or to grant permission for the cross-examination of defence witnesses in judicial proceedings challenging the lawfulness of an individual’s detention under the Terrorism Act 2000 Sch.7. The public interest against ordering disclosure, on national security grounds, was obvious and compelling.

Applications refused

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For the claimant R. (on the application of Miranda)

Matrix Chambers’ Matthew Ryder QC, Edward Craven and Raj Desai; Bindmans associate Gwen Morgan

For the defendant Secretary of State for the Home Department
39 Essex Street’s Steven Kovats QC and 6KBW’s Julian Blake, instructed by The Treasury Solicitor

Defamation

Briggs v Jordan 2013 WL 5730209 QBD Tugendhat J. 24 October 2013

A libel claim against the former chairman of Crystal Palace FC concerning passages in his autobiography about his former business partner was struck out. The passages referred to were disobliging of the claimant but not defamatory.

Claim struck out

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For the claimant Briggs

Ely Place Chambers’ Ronald Thwaites QC and David Mitchell; RadcliffesLeBrasseur partner Dominic Green

For the defendant Jordan
5RB’s Adam Wolanski: Simons Muirhead & Burton partner Martin Soames

Civil evidence

(1) BMG (Mansfield) Ltd (2) The BMG (Mansfield) Ltd Partnership v (1) Galliford Try Construction Ltd; (2) Aedas Architects Ltd 2013 WL 5730220 QBD (TCC) Edwards-Stuart J. 24 October 2013

Where a dispute concerning the cause of a fire in a shopping centre had been highly contested for almost a decade and showed no sign of a conclusion, it was not unreasonable for an elderly expert witness to wish to retire from the case. However, particularly where there were concerns about “expert shopping”, it should be usual practice for the court to order disclosure of all the retiring expert’s reports as a condition of calling fresh expert evidence. There had to be a very strong case of “expert shopping” to extend that condition to solicitors’ attendance notes recording the retiring expert’s opinions.

Application granted

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For the claimants (1) BMG (Mansfield) Ltd (2) The BMG (Mansfield) Ltd Partnership

2 Temple Gardens’ Robert Moxon Browne QC; Berrymans Lace Mawer partner Catherine Hawkins,

For the first defendant Galliford Try Construction Ltd
4 New Square’s Fiona Sinclair QC; Reynolds Porter Chamberlain solicitor Jonathan Carrington

For the second defendant (2) Aedas Architects Ltd
Keating Chambers’ Nerys Jefford QC and Samuel Townend; Dentons UKMEA solicitor Jill Heaton

Civil procedure

Ageas (UK) Ltd v Kwik-Fit (GB) Ltd 2013 WL 5730268 QBD Green J. 25 October 2013

The court determined the meaning of the word “serving” of legal proceedings in a share purchase agreement in respect of a claim for breach of warranty. In particular, it looked at whether the rules governing service in the CPR could be used to construe the agreement.

Preliminary issue determined in favour of claimant

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For the claimant Ageas (UK) Ltd

Brick Court Chambers’ Simon Salzedo QC and David Scannell; Shoosmiths partner Jonathan Grigg

For the defendant Kwik-Fit (GB) Ltd
4 Stone Buildings’ George Bompas QC, Maitland Chambers’ David Mumford; Baker & McKenzie solicitor Andrew Matheson

Civil procedure

Kesabo & 11 Ors v (1) African Barrick Gold plc; (2) North Mara Gold Mine Ltd 2013 WL 5338256 QBD Simon J. 23 October 2013

In an application for relief from sanctions under CPR r.3.9, some of the criteria in the old version of the rule might be relevant to the exercise of the court’s discretion, although they should not be applied in a formulaic way. The balance was in favour of granting an extension of time for the service of particulars of claim in a personal injury claim.

Judgment accordingly

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For the claimant Kesabo

Matrix Chambers’ Richard Hermer QC, Essex Court Chambers’ Huw Davies QC, Blackstone Chambers’ Tom Hickman; Leigh Day’s Richard Meeran

For the defendants (1) African Barrick Gold Plc; (2) North Mara Gold Mine Ltd
Henderson Chambers’ Charles Gibson QC and Andrew Kinnier; Quinn Emanuel Urquhart and Sullivan UK barrister Sue Prevezer QC

Damages

Chilukuri v RP Explorer Master Fund 2013 WL 5730303 CA (Civ Div) Rimer LJ; Lewison LJ; Briggs LJ. 29 October 2013

The court identified errors in a judge’s approach to the valuation of a minority shareholding in an overseas company, the principal asset of which was a bare majority stake in another overseas company which owned an unexploited mining concession. In any complicated valuation process, a provisional valuation had to be reached by examining each element of what was being valued. However, the valuer then had to stand back and exercise the principle of reality by looking at the provisional valuation in the round, and asking whether it made commercial sense.

Appeal allowed

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For the appellant Chilukuri

One Essex Court’s David Cavender QC; Fasken Martineau partner Robert Paydon

For the respondent RP Explorer Master Fund
Essex Court Chambers’ Jeffrey Gruder QC and Anna Dilnot; Farrer & Co partner Gavin Bacon

Tax

Prudential Assurance Co Ltd (2) Prudential Holborn Life Limited v Revenue And Customs Commissioners 2013 WL 5730208 Ch D Henderson J. 24 October 2013

The UK’s former rules on the taxation of portfolio dividends received by UK-resident companies from non-resident subsidiaries on shareholdings held by them as investments, as compared with the treatment of dividends paid and received within wholly UK-resident groups of companies, were in breach of EU law under the TFEU art.49 and art.63. The invalid charges under UK law could be remedied by adopting conforming constructions of the Income and Corporation Taxes Act 1988 s.231(1) and s.790. Test claimants had valid restitutionary claims for tax unlawfully demanded or wrongly paid by mistake and were entitled, on any consequent awards, to compound interest computed on the conventional government basis.

Judgment accordingly

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For the claimants Prudential Assurance Co

Joseph Hage Aaronson partner Graham Aaronson QC and Tom Beazley QC, instructed directly

For the defendants HMRC

Pump Court Tax Chambers’ David Ewart QC, Rupert Baldry QC, Fountain Court’s Professor Andrew Burrows QC and Pump Court Tax Chambers’ Barbara Belgrano, instructed directly

Planning

Lewis v Three Rivers DC 2013 WL 5730218 DC Richards LJ; Silber J. 24 October 2013

The court set out its reasoning, which was obiter due to lack of jurisdiction, that where there had been a series of contraventions of a stop notice contrary to the Town and Country Planning Act 1990 s.187, there could be a prosecution for each separate breach and the bringing of multiple charges for breaches of a single stop notice did not fall outside the scope of Town and Country Planning Act 1990 s.187(1A).

Appeal dismissed

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The appellant appeared in person

For the respondent Three Rivers District Council
3 Paper Buildings’ Michael Tomlinson, instructed directly

Civil procedure

Nomura International plc v Banca Monte Dei Paschi Di Siena SpA 2013 WL 5730212 QBD (Comm). Eder J. 24 October 2013

The wording of Regulation 44/2001 art.28(3) focussed on what in principle was expedient, in the sense of desirable, rather than what was possible. That meant that the existence of an exclusive jurisdiction clause in favour of the court second seised did not of itself mean that proceedings commenced in that court could not be related to proceedings in another court for the purposes of art.28(3).

Application refused

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For the claimant/respondent Nomura

Fountain Courts’ Richard Handyside QC and Tamara Oppenheimer; Allen & Overy partner John O’Conor; ???????? senior associate Joanna Wood

For the defendant/applicant Banca Monte Dei Paschi Di Siena 
3 Verulam Buildings’ Jonathan Nash QC and One Essex Court’s Douglas Paine; DAC Beachcroft partner Matthew Westcott

Damages

Eaton Mansions (Westminster) Ltd v Stinger Compania de Inversion SA 2013 WL 5730348 CA (Civ Div). Patten LJ; Tomlinson LJ; Christopher Clarke LJ. 30 October 2013

In assessing the damages payable on the negotiating basis by a corporate underlessee to a corporate underlessor for trespass, the parties, in their hypothetical negotiations for a licence fee, were to be taken to be negotiating for a licence period equivalent to the actual duration of the trespass which had occurred. Aggravated damages were not recoverable by a company which could not have suffered distress and injury to feelings caused by another’s conduct.

Appeal dismissed

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For the appellant Eaton Mansions (Westminster) Ltd

11 Stone buildings’ Jonathan Arkush; Cubism Law partner William Stockler

For the respondent Stinger Compania de Inversion 
2 Temple Gardens’ Christopher Lundie; Brian Harris & Co partner Jeremy Harris

Featured case

Administration of justice

Homes for Haringey v Fari 2013 WL 5826155 QBD. Spencer J. 31 October 2013

A wife was in contempt of court for signing a witness statement and schedules of loss that contained false statements regarding the extent to which she continued to suffer as a result of a tripping injury, and for deliberately exaggerating the extent of her symptoms to medical experts. Her husband was also in contempt of court for dishonestly assisting her and for falsely stating the extent to which she continued to suffer and needed care as a result of the accident.

Application granted

For the applicant Homes for Haringey

39 Essex Street’s David Melville QC; Plexus Law solicitor Jennifer Harris

For the respondents Barbara Fari and Piper Fari

12 Old Square’s Mohammed Bashir; KC Law Chambers Solicitors Cosmas Dikeocha

 

Commentary: Jennifer Harris is a solicitor at Plexus Law

Jennifer Harris

This case underlines the consequences awaiting those who make fraudulent and exaggerated claims. 

In May 2008 Barbara Fari sued Haringey council after tripping over an uneven paving stone outside her home. She claimed the injury to her right knee was so severe that she required ongoing care and assistance from her husband. While Homes for Haringey admitted liability, it disputed the £750,000 compensation claimed.

Undercover surveillance showing Mrs Fari walking without help subsequently revealed she had presented a false picture of her continuing symptoms in both her witness evidence and at medical examinations. Experts confirmed that the injuries sustained in the fall would have resulted in a minor aggravation of an existing deformity in her knee with symptoms lasting no more than three months, compensation for which would have amounted to no more than £1,500.

Following guidance by the Supreme Court a few months earlier in the case of Summers v Fairclough Homes Ltd, His Honour Judge Mitchell concluded that Mrs Fari had fraudulently exaggerated her claim and struck out the claim in its entirety as it amounted to an abuse of process.

On 22 January Mr Justice Holroyde gave Homes for Haringey permission to pursue both Mr and Mrs Fari for contempt of court, for false statements within signed documentation and false representations to the medical experts.

The couple denied contempt when they appeared before the High Court. Mrs Fari maintained she had relied on solicitors’ advice and signed documents that were not properly explained.

After examining surveillance footage and legal documents Mr Justice Spencer concluded Mrs Fari was aware of the contents of the witness evidence and schedule of loss she had signed. 

He commented: “Although she comes across superficially as a vulnerable and needy woman, I’m quite sure she is a strong and domineering character. Although lacking in formal education and literacy skills, she is nobody’s fool. I’m quite sure she is capable of playing upon her educational
and physical weaknesses when
it suits her.”

He ruled there had been “a serious and deliberate attempt to mislead”. While Piper Fari was the “less dominant in the relationship” he “foolishly” followed his wife, signing a witness statement despite knowing the contents were false. The couple were found guilty of contempt and last week were given a three-month custodial sentence which was stayed pending the outcome of an appeal.

This landmark case signals a new era in the battle against fraud by achieving the first complete strike-out to be followed by a successful committal. The judgment shows that the justice system will not tolerate exaggerated claims, and claimants tempted to try it on risk losing their liberty, not just their compensation.

The ruling is also a stark warning to claimant solicitors. They must be careful in fully advising their clients about the risks of pursuing exaggerated or false claims. This case should provide much-needed clarity and serve as a deterrent to others, which is crucial at a time of shorter time frames for investigations and continuing budget cuts.

Jennifer Harris is a solicitor at Plexus Law and acted on behalf of Homes for Haringey in the Homes for Haringey v Fari case