Vol 2 Issue 1 Spring 2007 Newsletter

Onwards & Upwards

It is traditional at this time of year, to review the old year and look forward to the next.
So what of the old one? We were told at the beginning of the year that the providers of our hosted/managed computer service were closing down the service. We were given ten days to put a new system in place. Thanks to the services of Colleton Computer Solutions, we achieved this. We hope that you saw a seamless transition to the new system.
The first quarter saw chambers expand its premises further, when we moved the clerks room and principal conference room to the first floor, giving the barristers more room upstairs, whilst clients and the clerks only had to climb one set of stairs. The new larger and brighter conference room has allowed us to host larger meetings and small seminars; we even managed to show one of the World Cup matches on our big screen last summer!
There were also two additions to the clerks room team. Sue Doggett now assists David with the preparation of accounts and Harry Turner joined us in September as the fourth member of the clerking team.
Chambers continued to consolidate its position over the year, and is recognised as being a set of true specialists.
And what do we expect 2007 to have in store for us? Sarah Hornblower (called in 2005) joins us as a new tenant in chambers, following completion of her third-six pupillage. Sarah was brought up in the Exeter area and following a 12 month pupillage in South Wales, the prodigal daughter has now returned.Two new pupils are due to start in April and October 2007.
With the spectre of Public Funding cuts on the horizon yet again,we will be working with you to find innovative and efficient ways of representing your clients.
We are presently working on developing a new, exciting and highly interactive website,which should be ready for launch in the late spring.We are also putting together chambers` 2007 seminar programme.
Finally,in May 2007,Chambers will be celebrating its tenth anniversary. Preparations are already under way for the celebrations – more in the next issue!
Needless to say, we expect this year to be a busy one. We would like to thank all of our clients for their continuing support during 2006 and wish everyone a happy and successful 2007.

"Into Africa"

While most of us were spending the first week of January working off the Christmas turkey, Gavin Collett and Charles Murray, were leaving Exeter for Bamako in Mali in a 1973 Land Rover, to take part in the inaugural “Bamako Run.”
The idea was for each team to buy a banger for less than £100. Those that made it the 4,100 miles through Europe, Morocco, Western Sahara and Mauritania, to Bamako in Mali, left their vehicles to be auctioned off for the benefit of local charities. The trip involved crossing minefields, entering Foreign Office ‘no go areas’ and passing through a yellow fever epidemic. The two intrepid barristers remained determined despite all this, commenting that worse things happened in Court!
Following their successful trip and safe return, Gavin and Charles continue to invite sponsorship for Balloons Bereavement and Loss, a new charity based in Exeter, designed to give counselling to children who have suffered close bereavements. Further details can be found on following website: http:://www.thelegalbeagles.co.uk

Liability for Value Added Tax and Medical Expert Witnesses

Introduction
In the last issue of this Newsletter, a summary of the Chief Medical Officer for England’s proposals was provided. Here, I draw attention to an area which could result in considerable difficulty in relation to a number of medical expert witnesses. It is as well to be aware of the potential difficulties that experts may run into as a result of an unrecognised tax liability.
As a general principle, those persons or bodies that undertake the provision of a service will attract a liability in respect of Value Added Tax (VAT). The Sixth VAT Council Directive 77/388/EEC (article 13 (A) (1) (c) provides that those who provide medical services in the exercise of medical and paramedical professions are exempt. This is also provided for in Value Added Tax Act 1994 (Schedule 9).
In the reported case of d’Ambrumeil & Another v Customs and Excise Commissioners (case C- 307/01) [2004] 3 WLR 174, the Court sought clarification of the meaning of “…the provision of medical care…” for the purpose of implementation of the domestic VAT legislation.

M e d i c a l Tre a t m e n t
While the phrase that was under consideration does appear on first glance to be simple, it is worth looking at it in some detail. The European Court of Justice, in its decision, was at pains to point out that a full understanding of the importance of medical services and the intention behind the legislation was essential in the correct application of the Directive (and so the appropriate domestic legislation).
The “…provision of medical care…” is in the vast majority of cases within the UK undertaken within the National Health Service. Those consultants and others who then also undertake any form of private medical practice are also generating a further income. With the development of many treatment centres and service providers either in competition or in parallel to the NHS, there are now a number of opportunities for medical and paramedical professions.
The approach taken by the European Court was to consider what would be meant or implied into the term. The Court took a fair and reasonable view and that was to read the word “treatment” into the provision.

E f fe c t o f “ Tre a t m e n t ”
With the indication provided by the European Court and the existing legislation, one can now consider what represents a potential liability in
any situation relating to the medical and paramedical professions. As matters stand, all work that would constitute treatment (and further as again applied in the d’Ambrumeil case “therapeutic effect”) would not attract a liability in VAT. However, other work which has no treatment value or therapeutic effect will now be liable to consideration for VAT.
Such work will include the provision of medical reports. While it is to be accepted that assessing and examining a person for the purpose of a medical report may be no different to the actions of any clinician in taking a history and examining the patient, the report and the purpose of the report have no treatment effect. It is sometimes the case that a specialist, in the text of a report, may recommend an investigation and/or an intervention so as to improve the circumstances of the person involved in the litigation process, but the treatment or therapeutic effect will not be as a direct consequence of the actions of the expert.
The provisions of the Civil Procedure Rules and in particular Part 35 place a clear duty upon the expert. Further, that duty is to the Court. Therefore one must consider in such circumstances whether any recommendations can be construed as being equivalent to treatment or have a therapeutic effect. The implication of the d’Ambrumeil decision is such that it cannot. Therefore all work in relation to experts from the medical profession must be potentially liable to VAT.
Other areas are also therefore liable and were considered in the d’Ambrumeil decision. These would include work undertaken in relation to insurance, occupational medicals (although no indication was given to those who undertake such a practice and offer treatment – the inference being such work is exempt) and regulatory work.

Va l u e Add e d Ta x
In such circumstances, therefore, it is suggested that all those involved within the medical and paramedical professions who have an area of practice that does not carry an exemption should seek expert financial advice as to their own particular situation.

HM Revenue and Customs will be more than fully briefed on the implications of this case and there will be a move to close any loophole as soon as possible.

Dr David Thomas.

The Devon Countryside Access Forum

It was a statutory requirement of the Countryside and Rights of Way Act 2000 (CROW) that Local Authorities create Local Access Forums. The forum appointed by Devon County Council has adopted the name the ‘Devon Countryside Access Forum’ (DCAF). It is an advisory body with no executive powers, but whose main purpose can be summed up as: the promotion and development of access to the countryside by the provision of advice to its creating authority. It’s existence is of interest to lawyers with a practice encompassing property and rights of way, as it must be consulted on a wide range of issues relating to the creation of byelaws, public rights of way and the public rights of way improvement plan, access land created under the CROW Act and its management. In this advisory capacity, DCAF is always most anxious to hear the views of the public. While the initial energies of DCAF were concentrated on the issues surrounding the implementation of the so called ‘right to roam,’ now that that process has been embedded, forums generally will be concentrating further time on access issues in general and are awaiting guidance from the Minister as to their future roles. This is expected to be available shortly.
Full details of the work of the DCAF and how it may be contacted can be found on the Devon County Council website at http://www.devon.gov.uk
Tim Felton is a member of the Devon Countryside Access Forum. As a Door Tenant at Rougemont Chambers, he is happy to advise on public rights of way matters and countryside law matters generally.

Tim Felton

Changes to the Law on Asylum

On 9 October 2006, the RefugeeorPersoninNeedof International Protection (Qualification) Regulations 2006came into force.
The Qualification Directive, as the parent European Union Directive is commonly abbreviated, was introduced to standardise the approach to the grant of asylum and subsidiary protection across the European Union.The 2006 Regulations give effect to the Directive by amending the Immigration Rules set out in HC395.
A person seeking international protection from persecution or serious ill treatment may qualify under the Qualification Directive either for the grant of asylum or for subsidiary protection called in the United Kingdom Regulations, humanitarian protection.

Asylum will be available in future as it has been under the Refugee Convention 1951 where an individual has a well founded fear of persecution in their country of origin.The amendments to the Immigration Rules provide definitions of key concepts such as internal relocation, adequacy of state protection and the relevance of past persecution to the risk of future persecution.
Humanitarianprotectionis a new form of protection and should not be confused with the Home Office’s grant of humanitarian protection which replaced the grant of discretionary leave some years ago. The new form of protection provides an individual with status and is available where the individual has been found not to be a refugee but faces a real risk of

• The death penalty;
• Unlawful killing;
• Torture or inhuman or degrading treatment or punishment;
or
• Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

The consequences for persons fleeing the conflicts in Iraq, Afghanistan or Lebanon may have to be reconsidered in light of this last limb of the definition of humanitarian protection.
Article3of the Human Rights Convention provides scope for individuals not falling within the definition of a refugee or humanitarian protection although the perceived wisdom is that in light of the wide scope of humanitarian protection, article 3 may only be relevant in ‘health’ cases.
Article8of the Human Rights Convention continues to be available in exceptional cases to prevent removal of an individual settled in the United Kingdom although the recent AIT decision in
WK(Article8–expulsioncases–reviewofcaselaw) 2006UKAIT70provides very clear guidance as to the extent of the task if removal is to be avoided.
Of particular importance to practitioners is the fact that all applications, appeals and determinations of reconsideration not finalised before 9 October 2006 are governed by the 2006 Regulations and the Qualification Directive. Practitioners must familiarise themselves with these key changes.

Richard Powell

Some Recent Developments in Expert Evidence in the Criminal Courts

As a result of a number of situations where expert evidence has been discredited, various guidelines have been issued as to what an expert report should contain. In particular, in the cases of R-v-Harris[ 2006 ] 1 C.A.R. 5, and R-v-B [ 2006 ] 2 C.A.R.3, and the Attorney-General`s guidelines in February 2006 on shaken baby cases.
The over-riding principle is that the expert must give independent rather than partisan evidence to the court, and must set out any observations that might detract from the conclusions.This principle should be augmented by the following considerations:-

• The qualifications and experience relevant to the opinion and any limitations on these.
• A description of materials upon which the opinion is based. However, this should be approached with some caution by defence solicitors, because if an expert is provided with a proof and/or instructions, the prosecution would be able to argue that the production and service of the report waives privilege on such documents.
• The details of methodology, setting out what work has been carried out and by whom.
• Where there is a range of opinion on the topic under discussion, this should be stated along with any matters which might detract from the opinion.
• Any extracts from relevant literature. • What matters, if any, which fall outside the expertise of
the witness. As an example, in R-v-Clark [ 2004 ] EWCA 1020, a paediatrician gave statistical evidence about the incidence of cot deaths. It was found that statistics were outside his field of expertise, and therefore his conclusions were erroneous. Interestingly, the defence did not question the statistical conclusions.
• In a situation where there is insufficient data, a contrary provisional view should still be indicated.
• Where there has been a change of view after a report is made, another report should be made, making the change clear and the reasons for it.

Finally, armed with all the foregoing, defence solicitors can embark on the next step of what should be done with the report and how best to use it, and that will be the subject of my next article!

Garth Richardson

Coming to a Nuisanc: Shervil v Eddy and Smith August 2006 Bodmin County Court HHJ Weekes QC

HHJ Weekes QC left a small but interesting footnote to his long and illustrious career as the Presiding Chancery Judge in Bristol when he sat in Bodmin County Court in a trial involving, inter alia, a claim for nuisance.
In 1979 a farmer excavated a lane from a main road around his farmhouse to provide access to a barn conversion. The access road curved into a hill and required a retaining wall. At the date of excavation the farmhouse was tenanted by the Claimants but a few months later the farmer sold the farmhouse to the Claimants while the barn and access road were transferred to his daughter.
The Claimants claimed that the excavation of the access road had caused water to percolate down the hillside, through the retaining wall, onto the access road and into the yard of their farmhouse. This, they said, was an actionable nuisance and they sued the widow of the farmer and the daughter for damages (amongst other things).
The claim failed for causation. The defence also claimed that any discharge that did occur was justified either by an easement of prescription or acquiescence. The Learned Judge reviewed the authorities (e.g Sturges v Bridgman [1877] Ch 852) and also considered the principle that it is ‘no defence to come to a nuisance’ and in particular the exception to the rule that the principle had no application in cases of landlord and tenant in respect of the state of the premises at the time of the demise (Baxter v Camden London Borough Council [1997] 1AllER 237 (CA) affirmed [1999] 4All ER 449)
The Learned Judge fondly recalled Lord Denning MR’s famous dicta in Miller v Jackson [1977] QB 966, [1977] 3 All ER 338, CA ‘In summer time village cricket is the delight of everyone………’ while noting that, despite the sympathy of the Master of the Rolls, it was decided that the cricket club had no defence to a claim of nuisance simply because cricket had been played at that ground for 70 years and the playing of cricket only became a nuisance when the plaintiff had built close to it. Obiter, he decided that there was no reason why a purchaser of property from a neighbouring landowner should be in a different position to that of a tenant when renting a property and, if there had been a nuisance, the claimants had known of this in 1979 when they bought the farmhouse. In essence there was no difference between caveat lessee and caveat emptor as far as the state of the property at the beginning of the contractual relationship. His ruling, albeit obiter, goes further than the dicta of Tuckey LJ (at page 246) but is entirely consistent with it.

Nick Berry

Spotlight on Ian Millard

Ian Millard specialises in all aspects of Commercial Law.
Ian was schooled in Sydney, New South Wales, Australia and thereafter in Berkshire. He graduated in Law from the University of Westminster (London) and subsequently was called to the Bar in 1991.
Following pupillage, Ian’s interest in International matters led him to practice abroad in various law firms. He was first admitted to the Bar of the State of New York in 1993 and then to the Bar of Anguilla, BritishWest Indies in 1999 as a comity admission. In between, Ian returned home to the practice at the London Bar between 1993 and 1996. In 1996 he was recruited to work as an employed lawyer in leading UK and US law firms; Cameron McKenna and Baker & McKenzie, working in both London and Moscow. He also spent some time working in Kazakhstan before being invited to“come in from the cold”when he became an employed lawyer, working and living in the UK, Caribbean and the United States between 1998 and 2002. A bit of a globe-trotter, Ian admits that he has either lived or spent considerable time in Australia,Turkey, Egypt, Poland, the former Soviet Union, the United States of America and the Caribbean. He can probably tell you a funny story from each – from driving at speed along a pot-holed road inTurkey to nearly being arrested at a Soviet Military Airport.
Ian joined Rougemont Chambers in 2002 with the intention to continue his commercial practice an international bias. Perhaps unsurprisingly, his practice has become more typically Westcountry than worldwide.
Ian specialises in commercial, contract, international and offshore companies, trusts and transactions, where occasionally his fluent Russian comes into play. He also practices in the Financial Services and Markets Act, oil and gas, international commercial law and purchase / sale of businesses.
When the Bar Council relaxed its rules with regard to accepting instructions direct from members of the public, Ian was amongst the first to undertake the necessary training to allow him to receive such instructions.