Vol 1 Issue 3 Spring 2005 Newsletter

Rougemont Chambers: The strongest civil team in the South West

In December 2004, Nicholas Berry, Steven Ball and Dr David Thomas, together with their clerk Sam Morgan (all formerly of Southernhay Chambers, Exeter) joined Rougemont Chambers.

Their move has merged two very successful civil teams of barristers, with practices that compliment each other, to form the largest and most experienced team of civil practioners in Devon and Cornwall.

Nicholas Berry (called in 1988) practices Commercial and Chancery Law of all types, including company, trusts and land, in particular drafting and advisory work. Stephen Ball (called in 1995) also practices Chancery Law but is more litigation based. He specialises in disputes involving technical matters; contract / commercial, personal injury; local authority liability and professional negligence. Steven`s original degree was in chemistry and he spent nine years in project management in the construction and electrical industries. Dr David Thomas (called in 2003) was, until recently, a Consultant Cardiologist. He practises in personal injury, clinical negligence, mental health, occupational illness, accidents at work and inquests, although at this stage of his career he accepts the benefit of working in other spheres which he enjoys.

Jeremy Haughty (called in 1989), who has been an Associate Member of Chambers for a number of years, has accepted an invitation to become a Full Member of Chambers. He practices in personal injury and employment law.

These appointments, in line with chambers` policy of careful, planned expansion, take the number of barristers in the civil team to twelve. Together, they offer a depth of experience and seniority that we have not previously been able to offer.

Spotlight on: Gavin Collett

Gavin Collett is one of the founding members of Chambers. He was born and raised in the Cotswolds and after several years in the Armed Forces, he returned to academia, taking A levels and reading a joint honours degree in Law and Social Sciences at Sussex University.

Gavin then moved to London where he was elected Inner Temple Student President while still at Bar school. He was called in 1993 and undertook pupillages at 2 Dr Johnsons Buildings (Chambers of Michael Brent QC) and then at 4 Breams Buildings (Chambers of Christopher Lockhart-Mummery QC) where he was pupil to many of the leading Planning stars of the day, including Robert Carnwath QC, now Mr Justice Carnwath QC. Whilst at 4 Breams Buildings, he was appointed as part of the Tesco's planning team, which took him countrywide to deal with planning enquiries. He admits (somewhat sheepishly) that he was Counsel acting for Oxford City Council when the one-way system was approved!

Never happy in London, despite it being the home of his beloved Arsenal Football Club, he spent more and more time in the West Country, until eventually joining Castle Chambers in Exeter in 1995.

In 1997, together with Michael Berkley and others, he founded Rougemont Chambers. He now practices in Planning and Environment, Land (all aspects), Boundary and Neighbour Disputes, Rights of Way, Crime, Road Traffic law, Licensing and Confiscation Orders.

Gavin was appointed to the Attorney General's List B for Criminal Matters in 2002. Gavin says that his main love is still planning law and that as a member of the Planning and Environment Bar Association, it is a pity that more solicitors do not use the expertise and local knowledge on their doorstep, as opposed to briefing London Counsel.
Gavin has appeared several times in the Court of Appeal, with an enviable record of recent success. He presently has two cases pending before the Court of Appeal, both involving post conviction requirements for sex offenders.Watch this space for further details!

Gavin is particularly interested in forensics and is the Course Advisor to the Forensic Course at Exeter University. As a Teaching Fellow of the University, he lectures particularly on forged/disputed documents and computer fraud, but enjoys all areas of forensics. When not working, his hobbies include watching Arsenal, fencing, keeping fit, literature, and gourmet cooking.

Immigration and asylum accreditation scheme

Firms wishing to offer publicly funded immigration and asylum work will need to take steps to ensure their caseworkers are accredited under the Immigration and Asylum Accreditation Scheme. The first round of examinations and assessments are due to take place at the end of June with further rounds in September, December and March. By April 2005 the scheme of accreditation will be mandatory. The only course provider in the United Kingdom is CLT and applications for registration should be made at the earliest opportunity. Richard Powell is an Immigration and Asylum Accreditation Scheme Assessor.

Licensing: The new regime

Many practitioners will be aware that the Licensing Act 2003 establishes a new regime for the regulation of the sale of alcohol and the provision of public entertainment. The Act was not a controversial measure when it completed its passage through Parliament, although recent press coverage of the link between antisocial behaviour and the prospect of twenty-four hour drinking has firmly thrust the new regime into the limelight.

On 7th February 2005, the transitional provisions came into effect. Current licensees now make applications to the Local Authority (the decision-making body which replaces the Licensing Justices) for the conversion of their existing licences into the new single licence under the Act, relying on the socalled "Grandfather Rights." The Act effectively guarantees to preserve the status quo. Applications to vary existing licences (and this will include extensions to opening hours) will require careful consideration by the Licensing Committee, and, in the light of the media campaign and adverse comments by police officers and doctors, Committees are bound to be under some pressure to give undue weight to the licensing objectives against the commercial objectives of applicants.

It is likely that the decision-making process will come down to exactly that ; striking a balance between the interests of public safety and public nuisance against the desires of the marketplace. In a new forum, under the terms of a new and untested regime, dealing with a statutory approach quite unlike that which has gone before, the need for highly effective, commercial and issuesensitive advocacy has never been greater.

Here at Rougemont Chambers, we have established a dedicated team of experienced licensing barristers to meet the challenge of the new regime. Richard Powell

Vibration white finger: From miners to bed-makers

Introduction Vibration White Finger (also known as Hand Arm Vibration Syndrome) has been with us for nearly a century. In recent years, it has become a common feature in litigation, in response to failures by employers to provide appropriate protection to their employees.

In 1911, Lorigia published a study of Italian miners who had developed a clinical condition of blanching of the fingers, associated with pain and subsequent colour-change, without any obvious factors other than exposure to vibrating equipment. During the next 30 years, three further research papers confirmed these findings. By 1971, the scene was set for the publication of a paper reviewing the condition of employees of the Forestry Commission (Taylor W, Pearson J, Kell RL et al, "Vibration Syndrome in Forestry Commission Chain Saw Operators" Br J Ind Med 1971; 28:83.9). Until the case of W v Commissioner (CI 207 2004), for Social Security and Child Support, there had been no findings to support a claim from an employee in the bed-making industry. The necessary statutory provision in paragraph A11 (c) Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, requires the affected person to show that the implement used was of a nature that involved in metalworking and that there were features of hammering, riveting, swaging, caulking or fettling.

In the case of W, it was argued that hammering applied and that the Commissioner should follow the decision in Secretary of State v Davies [2001] EWCA Civ 105, to the effect that there should be an interpretation of the terms which would avoid them being artificially narrowed. The Commissioner agreed and the Appellant was awarded Industrial Injuries Disablement Benefit. This was the first successful claim in this area of employment for this benefit.

Dr David Thomas

What rights of occupation has the wife of personal partner of a bankrupt?

A situation often faced by legal advisors is one in which a couple co-own a house, the husband becomes bankrupt and his property then vests in the Trustee in Bankruptcy. In a typical case, the wife or other partner is left in occupation of the property, possibly with children; yet that home forms part of the assets liable to be taken for payment of the departed husband's creditors.This will be the case whether the parties are unmarried, married (and staying married) or where, despite divorce and the wide discretion given to the Court under Matrimonial Causes Act 1973, the property is still co-owned.
Some factors to be taken into account:

. Insolvency Act 1986, s.335A, which provides that a trustee in bankruptcy can apply to the Court, under Trusts of Land and Appointment of Trustees Act 1996, s.14, for the sale of the family home. Relevant factors will be: the interests of the creditors; the conduct of the spouse or former spouse in contributing to the bankruptcy; the needs and financial resources of the spouse [etc]; the needs of any children; all circumstances other than the needs of the bankrupt.The sting in the tail here is that, save in "exceptional circumstances", the interests of the creditors outweigh all other considerations (providing the Trustee has been vested for at least a year). Very few circumstances are considered "exceptional", certainly not simply the fact of the partner lacks funds, that there is no money to rehouse herself and the children, that she is facing relocation and having to find new schools for children, nor is the fact that she has had no culpable part in the bankruptcy: Re Citro (A Bankrupt) [1991] Ch. 142,CA (hardship of wife and children distressing but not exceptional...). Only severe illness will normally suffice;

. Intention of the couple at the time of purchase: Lloyds Bank plc v. Rosset [1991] AC 107, 130. There might have been an intention for the non-bankrupt spouse to have an enlarged beneficial interest, displacing the presumption that equitable joint tenants have an equal share once the beneficial joint tenancy has been severed by the bankruptcy;

. Who contributed? If the property is in the names of both but the bankrupt spouse never contributed at all, then he may have no beneficial interest at all: Young v.Young [1984] FLR 375, although in Huntingford v. Hobbs [1993] 1 FLR 376, the fact that the husband had assumed legal obligations under the mortgage, even though these were never honoured, was enough to give him (and therefore the Trustee in Bankruptcy), a beneficial interest.

. Improvements made to the property: An "adjustment by way of account" may be made to reflect the expenditure on improvements, though credit may be given on the other side in respect of any right to non-occupational rent, where this applies: see Re Pavlou [1993] 1 WLR 1046.

. The Human Rights Act 1998: This legislation, which provides the right to family life, may assist in instances where a couple, or single parent with children, are in occupation.

Ian Millard

Human Rights : Being in Charge of a Motor Vehicle with Alcohol Concentration above the Prescribed Limit

Section 5(1)(b) of the Road Traffic Act 1988 creates the offence of being in charge of a motor vehicle whilst the concentration of alcohol in the Defendant`s body is above the prescribed limit. There is a defence under Section 5(2) which applies where the Defendant can "prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit."

It appeared to have been settled in Sheldrake v DPP [2003] 2 Cr App R 14 that Section 5(2) infringed the presumption of innocence guaranteed by Article 6(2) of the European Convention on Human Rights. The Divisional Court said that Section 5(2) should be read down so as to impose only an evidential burden on the Defendant. Therefore, it was for the Crown to prove, beyond reasonable doubt, that there was a real risk of the Defendant driving whilst over the prescribed limit.

The House of Lords unanimously held in the conjoined appeals of Attorney General`s Reference No 4 of 2002 & Sheldrake v DPP [2004] UKHL 43, that Section 5(2) imposed a legal burden on the Defendant to prove, on the balance of probabilities, that there was no likelihood of him driving. It was held that, although Section 5(2) infringed the presumption of innocence, the burden placed on the Defendant was not beyond reasonable limits or in any way arbitrary, "plainly the provision is directed to a legitimate object : the prevention of death, injury and damage caused by unfit drivers. Does the provision meet the tests of acceptability identified in the Strasbourg jurisprudence? In my view, it plainly does.. The Defendant has a full opportunity to show that there was no likelihood of his driving, a matter so closely conditioned by his own knowledge and state of mind at the material time so as to make it much more appropriate for him to prove on the balance of probabilities that he would not have been likely to drive, than for the prosecutor to prove, beyond reasonable doubt, that he would. I do not think that the imposition of a legal burden went beyond what was necessary." (per Lord Bingham of Cornhill, para 41).

It is therefore clear that the burden lies on the Defendant to prove, on the balance of probabilities, that he was not likely to drive whilst over the prescribed limit. For completeness, it is noted that the House of Lords also considered Section 11(2) of the Terrorism Act 2000 under the conjoined appeal and decided that the section should be read down so as to impose only an evidential burden on the Defendant.

James Bax

Re Byford (Deceased) [2003] EWCH 1267 (Ch)

In June 2003, this case examined the issue of occupation rent,where the husband had a bankruptcy order made against him in 1991 and yet continued to happily live in the property until 2000, when he died. Throughout the 1990s, his wife had made all the mortgage payments on the endowment policy but, of course, in July 2002, the trustee in bankruptcy demanded half of the equity in the property and an order for sale. Mrs Byford claimed credit from the trustee for the mortgage interest payment, who claimed the right to occupation rent in response. At first instance, both claims were allowed causing Mrs Byford to appeal to the High Court.

Mr Justice Collins followed the previous case of Re Pavlou [1993] 1 WLR 1046 and decided that although the bankrupt had not been forcibly excluded, this was not conclusive, and so set-off the wife's claim for mortgage payments against the claim for occupation rent. Was this simple outcome necessarily the right one?

Criticism
The common law regarding joint tenancies is clear: prima facie, occupation rent is not payable for sole occupation unless (a) there is agreement, (b) rent is received for the property or (c) one of the parties is effectively excluded or ousted. However, more recent cases have created a fourth exception: that is, where it is necessary to do broad equity between the parties.This was followed in Byford, where Lawrence Collins J stated; "It is true that the trustee could have realised his remedies earlier, but Mrs Byford benefited to a considerable degree by his inaction, while Mr Byford enjoyed the use of the property with Mrs Byford, without any benefit to his creditors.

The first question that the above dictum raises is plain. What possible relevance is it that the husband had enjoyed the use of the property? The moment he was made bankrupt, he ceased to be party to any proceedings. The second question is, in what way did the wife benefit, "to a considerable degree" by the inaction of the trustee? She was able to remain in occupation, but only by making all of the repayments, as she would have had to in any property. The fact that the trustee made no claim simply meant that she was paying to increase his share over the decade. This case therefore seems to have extended the equitable accounting principle to a virtual presumption that equity requires the payment of occupation rent to a trustee in bankruptcy.

Lawrence Collins J failed to make the distinction, albeit a subtle one, between the options open to an ousted partner and those open to a trustee in bankruptcy. An excluded spouse or co-owner cannot occupy the property but must incur the expense and stress of securing another home, and hence the court recognises the right to be paid an occupation rent. However, query whether the judge was wrong to state that the trustee cannot, "derive any financial enjoyment from the property while the bankrupt's spouse resides in it." Surely he can. Despite the continuing occupation of the spouse, the trustee has every right to immediately exercise his powers under the Insolvency Act 1986 and require the property to be sold. He is not precluded from doing this in the same way that an ousted partner is precluded from exercising his right of occupancy.

This is an important development in the law, although whether it stands the test of time as good law is yet to be discovered.

Nicholas Berry.

Changes to immigration and asylum appeals

The Immigration and Asylum (Treatment of Claimants etc) Act 2004 came into force on 4th April 2005. The Act abolishes the two-tier appeal process for the determination of immigration and asylum appeals and replaces it with a single tier called the Asylum and Immigration Tribunal (AIT).

The purpose of the change is to reduce potential abuse by unsuccessful claimants who are perceived to appeal again and again in order to prevent or at least delay their removal from the United Kingdom.

The Act establishes new, strict timetables for the processing of appeals and restricts the power of an unsuccessful claimant to appeal further to the High Court or Court of Appeal. In order to ensure that decisions made by the AIT are subject to a form of review, an unsuccessful party will be able to seek a reconsideration, but not a rehearing, of a decision. One of the more controversial changes introduced by the Act is to be found in Section 8. This provision requires decision-makers involved in the process (including the AIT) to treat a claimant`s credibility as having been damaged if, in the opinion of the decision-maker, he has, amongst other things, behaved in a way intended or likely to mislead, conceal or delay.

As many asylum cases turn on the claimant`s credibility, this provision is likely to have a significant impact on the number of appeals which are allowed. Although many of the changes touch upon asylum cases, immigration appeals are subject to the new procedures and time limits. Practitioners will need to ensure that they are familiar with the new legislation, the new Rules of Procedure and the explanatory Practice Directions being promulgated by the President of the AIT, Mr Justice Hodge.

Richard Powell

Jilbab or shalwar kameez

Lawyers are used to newspapers getting points of law wrong but the case of Shabina Begum against the Denbigh High School has spawned more ignorant comment than most. Shabina Begum wanted, because of her strict religion, to wear the full length jilbab rather than the neck and head covering of the shalwar kameez which was approved for school uniform purposes. The school then excluded her because she would not wear the proper uniform.This exclusion was contrary to Government guidance not to exclude for uniform issues and, in any event, it far exceeded the 45 day annual maximum: in fact she was denied schooling for two years.

Article 9 of the European Convention of Human Rights gives freedom to manifest religion and Article 14 gives the right to education.The Court of Appeal said that both of these were infringed because of the way in which the decision was taken and implemented. The Court gave guidance as to how schools should decide these issues. The right to manifest religion had to be balanced against, amongst other things, the rights and freedoms of others.There was evidence, produced only at court, that some of the liberal Muslims at the school felt threatened by the jilbab because of the intolerance associated with it.

If the school had carried out that balancing exercise, and come to the conclusion that wearing the jilbab infringed the rights of others, no court could have intervened.

John Lloyd