• Haugland Tankers As -v- RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As
• Focus Magazin Verlag -v- Ohmi-Eci Telecom (Hi-Focus)
• Clear Channel UK Ltd -v- Manchester City Council
• Grace -v- Biagioli and others
• Adam, Regina (on the Application of) -v- Secretary of State for the Home Department; Regina (Limbuela) -v- Secretary of State for the Home Department; Regina (Tesema) -v- Same

Clear Channel UK Ltd -v- Manchester City Council - [2005] EWCA Civ 1304
CA 09 November 2005	Landlord and Tenant
	The claimant sought a declaration that it occupied land on which it had erected advertising hoardings under a tenancy rather than as licensee. Held: The draft agreement proposed and acted upon with legal advice denied that any tenancy existed. The form of agreement did not specify clearly what land might be the subject of a tenancy. The declaration had been correctly refused.
	Judgment Links: Bailii

Grace -v- Biagioli and others - [2005] EWCA Civ 1222
CA 04 November 2005 Mummery, Mance LJJ, Patten J	Company
	The petitioner complained that he had first been removed as director, and that the remaining directors had misdescribed the company's profits and paid those profits to themselves as management expenses and in breach of a resolution requiring an equal distribution. He appealed a finding that he had not been improperly removed as director, and as to the remedy awarded. Held: The claimant's behaviour in negotiating to set up a competing company was sufficient to justify his removal as a director. The judge having found the misapplication of profits in one year had closed his mind to later years and had declined to receive evidence on the point. He had not therefore been correct to conclude that the misappropriation would not be repeated. The judge should have ordered the defendants to buy out the claimant's shares.
	Statute(s) referred to: Companies Act 1985 459
	Judgment Links: Bailii

Adam, Regina (on the Application of) -v- Secretary of State for the Home Department; Regina (Limbuela) -v- Secretary of State for the Home Department; Regina (Tesema) -v- Same - Times, 04 November 2005; [2005] UKHL 66
HL 03 November 2005 Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood	Benefits - Human Rights - Immigration
	The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day following their arrival. Held: The appeal by the Secretary of State failed. Lord Bingham of Cornhill: 'Shelter's experience is that there is no realistic prospect of a destitute asylum-seeker obtaining accommodation through a charity. Unless he has family or friends to provide him with accommodation or with funds, he will have to sleep rough. Clients in that situation who come to Shelter for advice are frequently cold, tired, and hungry and have not had access to washing facilities. They display varying degrees of desperation and humiliation as well as mental and physical illnesses.' The European Court has repeatedly said that article 3 prohibits torture and inhuman and degrading treatment in terms that are absolute. 'Withdrawal of support will not in itself amount to treatment which is inhuman or degrading in breach of the asylum-seeker's article 3 Convention right. But it will do so once the margin is crossed between destitution within the meaning of section 95(3) of the 1999 Act and the condition that results from inhuman or degrading treatment within the meaning of the article. ' and 'section 55 asylum-seekers . . . are not only forced to sleep rough but are not allowed to work to earn money and have no access to financial support by the state. The rough sleeping which they are forced to endure cannot be detached from the degradation and humiliation that results from the circumstances that give rise to it. ' Lord Scott of Foscote considered that a failure to provide support would not generally constitute treatment within the Convention, but 'asylum seekers were removed by section 55(1) from those destitute asylum seekers for whom the Secretary of State was able to provide under the various statutory powers that would otherwise have been available for that purpose. This removal, coupled with the bar on their supporting themselves by their own labour, plainly, in my opinion, constitutes 'treatment' of them for article 3 purposes. ' Baroness Hale of Richmond was uneasy with Laws LJ 'spectral analysis': 'It invites fine distinctions which have no basis in the Convention jurisprudence. ' and 'The state has taken the Poor Law policy of 'less eligibility' to an extreme which the Poor Law itself did not contemplate, in denying not only all forms of state relief but all forms of self sufficiency, save family and philanthropic aid, to a particular class of people lawfully here. We can all understand the reasons for doing so. But it is of the essence of the state's obligation not to subject any person to suffering which contravenes article 3 that the ends cannot justify the means. ' Lord Brown of Eaton-Under-Heywood: 'The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.'
	Statute(s) referred to: European Convention on Human Rights 83 - Immigration and Asylum Act 1999 95 - Nationality, Immigration and Asylum Act 2002 55(5)(a)
	Judgment Links: Bailii

International Transport Workers' Federation and Another -v- Viking Line Abp and Another - [2005] EWCA Civ 1299
CA 03 November 2005 Waller, Mummery, Tuckey LJJ	Employment - European
	An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction. Held: 'It is at first sight surprising that the English Commercial Court should be the forum in which a dispute between a Finnish company and a Finnish Trade Union and an international Trade Union concerned with a ferry running between Finland and Estonia should be litigated.' The questions of European Law would require clarification by the European Court, and a referral was made. The claimant feared delay at the European and pressed for interim relief. The court said that where as here damages 'are not likely to be an adequate remedy for either party, and where the nature of the case is as I have described, it seems to me that in assessing the balance of convenience and the holding of the ring the merits and strengths of Viking's case has considerable relevance.' To continue the injunction however would be to give the claimants the only remedy they needed, and to anticipate the finding of the European Court. The injunction was discharged.
	Judgment Links: Bailii

Huseyin Akici -v- LR Butlin Ltd - [2005] EWCA Civ 1296
CA 02 November 2005 Mummery, Neuberger LJJ	Landlord and Tenant
	The tenant appealed forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. The judge had found a sharing of occupation. Held: The tenant's appeal succeeded. 'The difference between possession and occupation is rather technical, and, even to those experienced in property law, often rather elusive and hard to grasp.' and 'I do not accept that possession cannot be shared.' Where the person prima facie entitled to possession is alleged to have parted with possession to an entity which is admittedly in occupation, the ultimate question is whether he has effectively ceded possession to that other entity. As to whether the s146 notice has properly identified the breach, it was recognised that an alienation covenant is a combination of covenants. Mannai will apply to s146 notices. In this case however a reasonable tenant would interpret the notice as only objecting to a parting with possession not a sharing of possession. (Neuberger LJ)
	Statute(s) referred to: Law of Property Act 1925 146
	Judgment Links: Bailii

Regina -v- Rimmington; Regina -v- Goldstein - Times, 28 October 2005; [2005] UKHL 63
HL 27 October 2005 Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood	Crime - Human Rights
	The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second, was accused of sending an envelope including salt to a friend as a joke. The envelope leaked causing a terrorist scare. Held: The common law offence of public nuisance had been substantially but not completely superceded by various statutory offences. Some old convictions for the offence would not now be repeated: 'the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare.' There may be a strong case for abolishing the crime of public nuisance, but 'as the courts have no power to create new offences . . . so they have no power to abolish existing offences. That is a task for Parliament, following careful consideration . . . whether there are aspects of the public interest which the crime of public nuisance has a continuing role to protect. It is not in my view open to the House in resolving these appeals to conclude that the common law crime of causing a public nuisance no longer exists. ' An essential element of the offence was that the public or some section of it was intended to be affected. In neither case was that the intention. Each defendant had intended his acts to affect only one individual at a a time. The House considered whether the offence was sufficiently well defined to meet Human Rights standards: 'There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.' The offence met that standard.
	Statute(s) referred to: European Convention on Human Rights 7(1)
	Judgment Links: Bailii House of Lords

Langley and others -v- Liverpool City Council and others - Times, 19 October 2005; [2005] EWCA Civ 1173
CA 11 October 2005 Thorpe, Dyson, Lloyd LLJ	Children - Human Rights - Police
	Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the human rights of the families. There had been an Emergency protection Order, but the children had been removed by th epolice officer without a warrant under s48(9). Held: There was nothing in the Act to require a warrant. The argument on surplusage (that s48(9) would otherwise serve no purpose) failed because the section was intended to address a particular need to have authorised entry to premises. The police officer had however acted outside his powers in purporting to execute the Emergency Protection order. It was not for him to do so. The appeal by the local authority succeeded, but not that of the police constable, though no personal blame attached to the officer.
	Statute(s) referred to: Children Act 1989 44 46 48(9)
	Judgment Links: Bailii

M Shah -v- Haden Building Management Ltd - Times, 02 November 2005; [2005] UKEAT 0400_05_2809; UKEAT/0400/05
EAT 28 September 2005 His Honour Judge Ansell	Discrimination - Employment
	The tribunal had served a pre-hearing notice on employment dispute consultants who had acted for the claimant, but who had reserved their position in correspondence with the employers, and had asked that any documents be served on the claimant direct. The claimant did not attend, and her claim was struck out. Held: The letter had been put before the tribunal, but the firm had in other respects held themselves out as acting for her, and the service was good.
	Judgment Links: Bailii EAT

B And L -v- The United Kingdom - Times, 05 October 2005; [2005] ECHR 584; 36536/02
ECHR 13 September 2005	Human Rights
	The clamants said tha UK law was inconsistent in its treatment of marriage between in-laws, since it provided that it was availabale only by means of a private Act of parliament. Held: The provision was irrational and infringed the human rights of the claimants. The inconsistency between a ban on such marriages, and the allowance of some of them undermined any suggestion that the policy was rational.
	Statute(s) referred to: European Convention on Human Rights - Marriage (Prohibited Degrees of Relationship) Act 1986 - Marriage Act 1949 81
	Judgment Links: Bailii ECHR

Wiggins, Regina (on the Application Of) -v- Harrow Crown Court - [2005] EWHC 882 (Admin)
Admn 20 April 2005 Collins J	Criminal Practice
	The defendant appealed against refusal of bail. He had failed to attend court in time of the day of his trial and said he had overlooked the date. Held: '[T]he question of whether bail should be continued or removed in connection with the main proceedings is a matter which does not depend upon a conviction for failing to surrender. It depends upon either a conviction or upon a failure to surrender. Paragraph 6 [of the Practice direction] makes it clear that if it appears to the court that he has failed to surrender, and the court does not take the view that there was reasonable cause for the failure, then there is an obligation to refuse bail unless the court takes the view that there would be no significant risk that if released on bail he would fail to surrender to custody. ' As to the conclusion that a failure to attend for forgetfulness justified a remand 'it is difficult to see how it could follow from that one failure, which admittedly was a significant failure and one which, unfortunately, took place on the day on which he was due to be tried, that he would in the future do the same thing, or he might in the future do the same thing. It seems to me that in the light, as I say, of the general approach to bail, and even bearing in mind Parliament's views as set out in paragraph 6, there was precious little, if any, evidence to justify the fear which the learned judge said that she had.'
	Statute(s) referred to: Bail Act 1976 4(1) - Firearms Act 1968 16A
	Judgment Links: Bailii

Sherrington and others -v- Sherrington - Times, 24 March 2005; [2005] EWCA Civ 326
CA 22 March 2005	Wills and Probate
	The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his children. The judge had held the will invalidly executed. Held: The court noted the need for great care before overturning findings of fact by a lower court. The will appeared to be an extraordinary one in the light of the deceased's expressed feelings about his wife. The judge had given great weight to the evidence of one witness, but had found her evidnce incorrect in its most singular aspect when saying that the testator had signed the will first. She had also later talked about the will and said she witnessed it, though her evidence at court wa sthat she had not known she was witnessing the will. Given the deceased's insistence on the correct formalities, it was not credible that he did not have the will properly executed. In view of the identified errors in the evidence of the witnesses, the finding that the will was not executed and could not stand. Additional computer evidence tended to undermine the basis of the judge's conclusions as to how it was drawn. An appellate court can be less cautious about interfering with a judge's finding on a fact about which no direct evidence was given: the judge's decision that the deceased did not know or approve the contents of the Will was contrary to all probability and beyond belief: it is plainly wrong. The appeal was allowed.
	Statute(s) referred to: Wills Act 1837 9
	Judgment Links: Bailii

Haugland Tankers As -v- RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As - [2005] EWHC 321 (Comm)
ComC 09 March 2005 The Hon Mr Justice Langley	Contract
	An option agreement was granted for the sale of a ship hull. The option was excercised but the defendant claimed the commitment fee required was not paid. Held: The exercise of an option had to be in the precise terms set out in the contract. The offer contained in the Option could not be accepted in exact compliance with its terms without payment of the Commitment Fee at the same time as the notice was served. The defendant succeeded.
	Judgment Links: Bailii Court Service

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