Digest
Case-law Digest
CRIME
Reading BC v Younis [2015] EWHC 3212 (Admin)
Having bought a motor vehicle, the defendant took the car for its MOT test and advertised it for sale online. The vehicle was purchased as a result of the advertisement. The car leaked water and the local authority’s trading standards department took up the purchaser’s complaint. The department prosecuted the vendor, alleging that he was a trader when he sold his car to the purchaser. The defendant was acquitted by the magistrates, who found that the vendor was not a trader.
On appeal by way of case stated, the council’s appeal was allowed. The case was remitted to the magistrates’ court for a rehearing. Regularity of dealing was relevant in establishing whether or not a person was a trader, and the fact that the justices had failed to address the key issue of the previous sale of 19 cars, which might have made the vendor a trader, demonstrated that their reasons were flawed.
EMPLOYMENT
Ministry of Justice v Burton [2016] IRLR 100
The Employment Appeal Tribunal (EAT) ruled that part-time judges of the Residential Property Tribunal were less favourably treated than their full-time comparators under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 SI No 1551, ie, salaried judges of the First-tier Tribunal (Tax Chamber), as regards payment for writing up decisions. Full-time tax judges were nominally allocated between one-and-a-half and two days for decision writing per day of hearing. Part-time property judges, by comparison, were not paid a fee for judgment writing as a matter of entitlement, only as a matter of discretion. It was permissible for the employment judge to make a ‘broadbrush assessment’ of what was required to eliminate less favourable treatment (para 30 of the EAT transcript).
Science Warehouse Ltd v Mills [2016] IRLR 96
According to the EAT in this case, a claimant who seeks to amend an existing employment tribunal (ET) claim by adding a new claim is not required to pursue early conciliation with the Advisory, Conciliation and Arbitration Service in respect of this new cause of action. Any perceived abuse of this process arising from the addition of claims to existing proceedings is subject to the control of the ET, exercising its case management powers concerning whether or not to allow a claim to be amended.
Farnan v Sunderland Association Football Club Ltd [2016] IRLR 185
A marketing director of a football club was not wrongfully dismissed when his contract was terminated without notice because of breach of confidentiality. Comment: The case provides an interesting illustration of the principles relevant to confidentiality and summary dismissal.
Mohamud (in substitution for Mr A Mohamud (deceased)) v WM Morrison Supermarkets plc [2016] UKSC 11*
The Supreme Court unanimously allowed the claimant’s appeal and held the respondent vicariously liable for the actions of its employee, Mr Khan, in attacking the claimant. The claimant was seriously attacked by Khan, who was employed by the respondent to serve customers at the petrol station kiosk. Khan was working at the kiosk when the claimant visited the petrol station. The claimant had done nothing that could be considered aggressive or abusive when Khan attacked him and told him in threatening words never to return.
The claimant brought proceedings against the respondent on the basis that it was vicariously liable for the actions of its employee, Mr Khan. The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what Khan was employed to do and his tortious conduct in attacking the claimant for the respondent to be liable. The Court of Appeal upheld the judge’s decision.
In giving the lead judgment, Lord Toulson first clarified that the close connection test has been followed at the highest level, and there was nothing wrong with that as such. In the present case, the court had to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee. This is to be viewed broadly. Second, the court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.
Applying the facts of this case to those tests, Lord Toulson reasoned that it was Khan’s job to attend to customers and respond to their inquiries. His conduct in responding to the claimant’s request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events. In clarifying this, he explained that, first, it is not correct to regard Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter: he was following up on what he said to the claimant. Second, when Khan followed the claimant to his car and told him not to come back to the petrol station, this was not something personal between them, but an order to keep away from his employer’s premises. In giving the order, he was purporting to act about his employer’s business, Khan’s motive in the attack is irrelevant. See also (2016) April CILExJ p26.
WILLS AND PROBATE
Henderson v (1) Wilcox (2) Wilcox (3) Robertson (4) Duff [2015] EWHC 3469 (Ch)
The court has power to modify the application of the forfeiture rule in certain circumstances under Forfeiture Act 1982 s2(2). In Henderson, the court exercised its discretion not to modify the effect of the forfeiture rule in the case of murder and manslaughter. A son pleaded guilty to manslaughter after killing his mother, and applied unsuccessfully for relief from forfeiture so he could inherit her £150,000 estate. In relation to the son’s beneficial interest under a property trust, the court decided that the forfeiture rule had no application to any existing or future interest created under either of the property trusts concerned in the case.
However, in relation to property passing under the terms of the will, the court found that in view of the son’s conduct; the seriousness of the offence and that he was fit to plead, justice did not require modification of the forfeiture rule under section 2(2). His claim was therefore dismissed.
McCabe v McCabe [2015] EWHC 1591 (Ch)
A son was disinherited, and he challenged the will on the ground of inter alia lack of testamentary capacity. The case turned on whether or not T’s decision to disinherit the son was based on false beliefs or confabulations. Two consultants who gave medical evidence had not known that the testatrix ‘false’ beliefs (that the son had initiated a police investigation into her financial affairs without her authority) poisoned her affections towards her son, which he said were caused by dementia. The experts’ evidence was, therefore, of limited value.
Comment: The will was found to be valid, but the case raises the question of to what extent practitioners should instruct experts to investigate factual matters that would be put to the court.
Kebbeh v Farmer [2015] EWHC 3827
The claimant applied unsuccessfully for financial provision under the Inheritance (Provision for Family and Dependants) Act (I(PFD)A) 1975. The court’s consideration of domicile was critical to the case, notably T’s intentions and the ‘key issue’ of whether he intended to live in the Gambia permanently or indefinitely (para 20). On the evidence, the judge found that T’s conduct from 1994 onwards was consistent with a settled intention to remain and live indefinitely in the Gambia, and that intention became stronger over the years. He found that even when his marriage to the claimant started to show strains, one of the reasons was the conflict between the claimant’s wish to live in England and T’s wish to live in the Gambia.
The judge ruled that T’s clear intention was to be domiciled in the Gambia and he did, in fact, die domiciled in that country. The claimant, therefore, had no claim under the I(PFD)A. Comment: With domicile becoming increasingly common in contested wills cases, the ruling shows that the courts will give detailed consideration of all the evidence surrounding issues of domicile.
* The Mohamud case summary appears with the kind permission of UK Supreme Court (UKSC) Blog at http://ukscblog.com. Readers should note that the full judgment of the UKSC is the only authoritative document. Judgments are available here