A silver jubilee
Twenty-five years ago The Comic Strip and The Krankies Klub were introduced to television viewers. Spousal maintenance payments were attracting tax relief and some unscrupulously enterprising couples secured divorces but remained together with the benefit of a periodical payments order in lieu of housekeeping. A new totting up procedure for serial motoring offenders started out with the counting up of penalty points instead of the number of court appearances made at which endorsement orders were attracted. The County Court Rules underwent a major revamp and the Rules of the Supreme Court Order 15, r 6(6) was amended by the substitution for the words “if the court is satisfied” of the words “if, and only if, the court is satisfied.”
And your author began a column in New Law Journal. It was called “Litigation”. My brief was to write a punchy monthly update about developments in the field of litigation. When the first column appeared on 1 July 1982, the editor hoped that practitioners would contribute points of practice and raise issues they would like aired or that they felt should be brought to the attention of fellow practitioners.
Feedback
Over the years I have been publicly and acidly, yet rightly, corrected by a former senior lecturer at the College of Law, and charmingly but privately berated by a current general editor of The Green Book. One reader’s stricture resulted in a mea culpa but a warning by me that if he could find two further errors during the following six months, he would be required to take over the column. Two misconceived attempts at correction have been struck out. A practising law lecturer complained that he had been misquoted and Boy George’s solicitor that his client had been libelled. No damages have ever been paid. One solicitor wrote in with a report about vibration white finger that, for reasons best known to himself, he thought I could turn into some sort of joke.
As one of those dangerous all-rounders, I felt qualified to cover criminal as well as civil law. After all, at Gosport Magistrates’ Court had I not successfully defended the patron of a Chinese restaurant who had been charged with the theft of a salt pot and a pepper pot from the establishment? The pepper pot allegation was dismissed on a submission of “no case to answer” and the salt pot allegation dismissed after a full summary trial. The lay justices might have been influenced by my suggestion that only a gastronomic pervert would dishonestly appropriate property of this kind. And had not a summons against my client for breaching an abatement order that prohibited a dog barking at her home during specified hours been dismissed after prosecution evidence of dog howling? The justices accepted the submission that a howl was not a bark.
And for five or so years I had the interesting experience of satisfying the legal requirements of the twins Ron and Reggie Kray. Some of you, dear readers, have been in unexpected company.
Those were the Krays
An interest has to be declared. Whilst doing his porridge (Reggie) has had me in as his brief in recent times. The biggest mischief perpetrated by him over this period seems to me to be have been his reading of NLJ Litigation. 20 April 1990 (140 NLJ 6452, p 544).
In Reg Kray: A Man Apart, published by Sidgwick & Jackson, Reggie’s widow Roberta Kray observes that her husband had a good relationship with me and wrote me a vast number of letters—which is perfectly true as is the fact that they normally ended with a “God Bless” unless I had displeased. I am said to have answered the correspondence—which is also true but I answered without blessings—and to have provided Reggie with regular copies of a law journal. Alright, so he didn’t have a subscription.
The criminal element disappeared when, 13 years ago, the column was renamed “The Civil Way”.
Marital bashing
In 1983 we reported on what we believed to be the first case of a wife suing her husband for civil damages for trespass concurrently with seeking ancillary relief in the course of divorce proceedings against him. Twenty-four years on, the strategic assessment holds good.
Battering News
For the first time in England and Wales, wife sues husband for damages for assault and battery—and wins. A bit like the first time a complaint was laid by a tenant against his council landlord alleging a statutory nuisance under the Public Health Act 1936: the first cheeseburger. Obvious—and why didn’t I think of it?! Mrs Maria Church of Wood-ridings Avenue, Pinner, Middlesex thought of it after her husband Mr Leslie Church of Rayners Lane, Harrow, Middlesex attacked her, breaking her nose and cheekbone. She ended up with double vision and ear, nose and throat problems. The incident took place whilst divorce proceedings between the couple were pending: she had petitioned and he had answered and cross-petitioned. Mrs Church, armed with a legal aid certificate, issued a trespass writ in the QBD whereupon Mr Church admitted liability. After a one-half day open court hearing on damages, Lincoln J has just awarded the wife £9,605 damages and interest and ordered the husband to pay the wife’s costs...The court went into chambers on ancillary relief for three days and judgment there is expected at the end of this month.
So what should the battered wife do when the marriage is over and the husband could afford to satisfy a trespass judgment? An action for damages may well be preferable to seeking something extra for “conduct”. If the incident was minor, it will probably be insufficient to amount to conduct. If it was serious, it could well earn the wife more in terms of damages than a “conduct” bonus and Litigation submits it would be wrong for the damages to be taken into account as part of the wife’s conduct for the purposes of ancillary relief. 8 April 1983 (133 NLJ 6098, p 317).
When the judge made an order for ancillary relief on 26 April 2007, he did ignore the £9,605 trespass damages. As we reported, the wife’s concurrent proceedings had paid off.
Solicitors’ conveyancing monopoly broken
On 22 December 2003 MP Austin Mitchell moved the second reading of his private member’s House Buyers’ Bill, which was to lead to the abolition of the solicitors’ conveyancing monopoly. In doing so he told the House of Commons that the conveyancing process was fraught, risky and aggravating. He stated: “The key obstacle and problem is the solicitors’ monopoly of conveyancing or more accurately, their monopoly over drawing up conveyancing documents, for which no particular skills are required other than perhaps the ability to write and put names on a standard form.” Two months later, I discovered that Mr Mitchell had just bought and sold houses and done his own conveyancing on behalf of himself and his wife with some help from a Which? guide and also a public spirited solicitor “when I got into horrendous problems”. But he had still succeeded in making a mess of things.
Conveyancing Corner
“We can get Emmet on Title if we want to read about conveyancing!” Steady on. Conveyancing legislation along the lines threatened could boost the importance of your contentious departments. And so Litigation must turn its attention to what is happening…
The Mitchells’ purchaser was represented by Mill Hill solicitor Adrian Tremlett. He reckoned that the Mitchells had started off better than the average DIYers and got worse. He was impressed by the reply to the preliminary enquiry about overriding interests—“Not aware of any sheep walks”—but thought that black marks had been earned by the Mitchells for, amongst other things, failing to date all letters; failing to submit the draft contract until one month after sending the office copy entries; proposing exchange of contracts four days after the draft contract had been received; sending off their part of the contract about one week after contracts had been treated as exchanged and not dating it; and failing to reply to requisitions on title. 13 April 1984 (134 NLJ 6150, pp 354–55).
On the Mitchells’ own purchase, their preliminary inquiries were submitted to the vendor’s solicitor with a letter referring to “ritual” inquiries and anticipating “ritual replies”. When the vendor’s solicitor Tessa Roxburgh from London’s Wood Green stated she would only answer those inquiries which the Mitchells thought worthy of an answer, Mr Mitchell told her to do her professional duty—though she owed none to the Mitchells—and so, for a quiet life, she replied to them all. The draft transfer mistakenly omitted Mrs Mitchell as the co-purchaser and the requisitions were out of time.
And this is how Mr Mitchell summed up his post-conveyancing feelings to me.
Mr Mitchell was highly complimentary when he spoke to us about the way the solicitors had performed. He recognised that things could go wrong and, whilst he still thought that solicitors exaggerated the legal skills required in conveyancing, he acknowledged to us that the organisational skills of solicitors were more necessary than he had thought and he had been impressed by the way solicitors “trust each other”. Without that trust and the goodwill on the part of all the solicitors involved…the Mitchells could have come a cropper. Mr Mitchell said the conveyancing work had taken him quite a bit of time but “in bursts”. On his next conveyancing transaction he will get someone else to do the work...Would he prefer to go to a solicitor rather than a licensed conveyancer provided the fee was reasonable? Yes. 13 April 1984 (134 NLJ 6150, pp 354–55).
If only, eh? If only the Mitchells had moved earlier and I had reached the MP in his constituency office—“He’s just gone for some fish and chips” the woman had said when I first called—before the Bill’s second reading. History may have been different. Your conveyancing department with monopoly intact could still be raising inane preliminary inquiries like: “Is the property haunted and, if so, please give full particulars of the ghosts and whether they are friendly?” Your conveyancing partners would have continued to sneer at you with your puny gross fee returns and jacket elbows shiny from resting on police station interview desks, and licensed conveyancers would have become the title for public transport drivers.
Drink drive
The controversial drink-drive provisions of the Transport Act 1981 came into force on 6 May 1983. The idea was that they should plug loopholes and simplify proof of drink-driving. Oh dear. The Home Office had approved two machines for the substantive breath test—the Intoximeter 3000 and the Camic. Magistrates at Cannock elected to have a blow when the former was demonstrated to them.
Huffing, puffing and no-blow situations
Although shortage of wind is not an ailment known to ordinarily afflict lay justices, something odd seems to have happened at Cannock, Staffordshire—at least if the letter from the Justices’ clerk there Mr A G Marshall is anything to go by. Recently, several magistrates at a demonstration of an Intoximeter 3000 breath machine provided specimens and “at least three of them would now face 12 months’ disqualification from driving because, after several attempts comprised of much huffing and puffing, they where unable to satiate the machine’s appetite and so provide a reading”. 10 June 1983 (133 NLJ 6107, p 525).
The public was suspicious of the new breath machines. How reliable were they? BBC Radio 4’s Checkpoint programme and The Daily Express had raised what seemed to be serious causes for concern and advocates were on the starting block for a myriad of technical arguments. These were to flood the appeal courts. The first court challenge to the Intoximeter 3000 reached Portsmouth Magistrates’ Court with your intrepid reporter present. A dentist charged with driving with excess alcohol claimed that the police station specimens she provided were affected by alcohol substances in the Gold Spot breath freshener she had squirted into her mouth on the way to the station. The prosecution’s counter-claim was that the freshener’s alcoholic substances would have dissipated by the time she patronised the machine. Experts were called by prosecution and defence.
Microgram Corner—“Gold spot”
The defendant demonstrated from the witness box how she had squirted Gold Spot twice into her mouth in the police car. She accepted an invitation from prosecuting solicitor Graham Parsons to patronise the breath machine at the adjacent police station 20 minutes later. She had not consumed any previous alcohol that day. In the presence of an intrigued bench, she gave two specimens: the first registered 252 microgrammes of alcohol per 100 millilitres of breath and the second 20 microgrammes of alcohol per 100 millilitres of breath. The defendant was convicted. She will not be appealing. 12 August 1983 (133 NLJ 6116, pp 712–13).
Defence arguments were sometimes ingenious, always tenacious and occasionally successful. In September 2003 the Home Office and prosecutors were rattled by a decision of Basingstoke justices that the print-out produced by the Intoximeter 3000 was inadmissible in evidence because it did not amount to a “statement” as defined and the production of which was the only way of proving the machine’s measurement of alcohol in the body. The justices dismissed a charge of driving with excess alcohol. If the decision had stood, the government would have been forced to rush through a Bill to put things right or have the breath machine modified and reapproved. In the event, the prosecution prevailed before the Divisional Court.
That was the Basingstoke defence, that was?
The best seats in Court No4, RCJ were occupied early on Thursday 8 December 1983 for Gaimster v Marlow. Clerk to the Justices Mr Bryan Gibson braved it up from Basingstoke and the motoring respondent was there too, a respectable distance away. It took the Divisional Court (Lane LCJ, Watkins LJ and MacPherson J) 2.5 hours to unanimously allow the prosecutor’s appeal and direct the justices who had dismissed an over 35 information at the close of the prosecution case, to continue the hearing. 16 December 1983 (133 NLJ 6134, pp 1090–91).
So intense had been court attacks on the breath machines and so vigorous the campaign against them by the Daily Express that in April 1984 the Home Office announced the introduction of a non-statutory blood or urine option in the hope that public confidence in the breath machines could be re-established. Suspects who scored no more than 50 microgrammes of alcohol per 100 millilitres of breath had been given a statutory right to ask for the breath specimens to be substituted for a specimen of blood or urine. The non-statutory option involved suspects with a higher reading on the breath machine being permitted to ask for blood or urine by police concession. However, this was perceived by some as an unattractive concession because it put the suspect at risk of doubling the evidence against him as the police generally reserved their right to adduce evidence of both breath and blood or urine analyses in the concession situation. For the teetotaller, there would be relief that blood or urine would vindicate him. The concession was intended to last for six months. It stayed around for over four-and-a-half years.
By the end of 1987 the more respectable defences had become clarified and we highlighted 11 of the best on 11 December 1987 (see 137 NLJ 6335, p 1151)—these were among them:
THREE OF 11 of the Best
Archbishop defence
Motorist dined with archbishop and secretary of local law society before taking to driving seat. Articulate, coherent and body erect when lodging complaint with station inspector following charging. Breath machine must have been defective. See Cracknell v Willis.
Dirty trick defence
“Of course if the appellant had been lured to the police station by some trick or deception or if the police officers had behaved oppressively towards the appellant, the justices’ jurisdiction to exclude otherwise admissible evidence…might come into play.” Lord Fraser in Foot v Chief Constable of Gwent [1985] RTR 337. See Gwent v Dash.
Absent brief defence
Whilst there is no embargo on police carrying on with usual procedure at police station pending motorist taking advice from solicitor, if he has been told affirmatively he will not have to provide specimen until he has consulted solicitor, this might be a reasonable excuse for refusal. “I will supply but can I see my solicitor first” is not a refusal but seeking a favour: police should decide, in exercise of discretion, whether to grant favour or not. And we submit that bad case (oppression etc) could justify exclusion of specimen or failure evidence under s 76 and/or s 78 of PACE 1984. See Copyright v East and others.
My own attempt at adding a 12th defence met with defeat. Appearing at Thames Magistrates’ Court for the excess alcohol driver, I took the precaution of inspecting the breath machine print-out when it was produced in evidence by the operating police officer. My client had signed but where the police officer should have signed, there was a blank. Any criminal advocate will know the exhilaration (or panic) that such a discovery can induce. What is the legal consequence of this irregularity? Do I object now to admission of the document or do I make a submission at the close of prosecution’s case? I submitted “no case to answer” on the basis that the print-out did not satisfy statutory requirements and was inadmissible. My client was convicted and appealed to the Divisional Court. The decision was reported in 1989. Note—no jokes, no identification of the legal representatives.
Self-certification
The printout certificate had been signed by the motorist instead of a constable and the oral evidence was fatally lacking in that it did not deal with the second calibration. These were the facts in Garner v DPP which came before Stocker LJ and Roach J on April 14 1989. The court held that whilst inadmissible under the Road Traffic Act 1972, s 10(3), the printout was admissible at common law as being real evidence and had been linked to the motorist by oral evidence. The purpose and effect of s 10(3) was, inter alia, to permit the printout to be tendered and was capable of establishing the facts stated in it without the necessity of anybody being called to prove it. 21 April 1989 (139 NLJ 6409, p 548).
Conduct in ancillary relief
Like any normal legal acolyte, I was a fully paid up member of the Denning Fan Club. His support for “obvious and gross” (otherwise known as “gross and obvious”) in the field of matrimonial finance was as renowned as his “old Mr Bundy”. When would “conduct” be taken into account? We examined the situation in 1984.
Missconduct? Anniversary
Twelve years ago last week Mr and Mrs Watchel were granted cross-decrees. Then they had a little disagreement over ancillaries. Ormrod J said something about “obvious and gross” and the Court of Appeal with Denning MR at the helm, agreed with him. In Kokosinski v Kokosinski [1980] 1 All ER 1106 Wood J held it meant that if conduct known to the court was such as it would really offend a reasonable person’s sense of justice to say that it ought not to be taken into account, it was proper to take it into account. And then came Robinson v Robinson [1983] 2 WLR 146 where the Court of Appeal approved a magistrates’ court finding of “gross and obvious” (spot the difference) misconduct by a wife deserting her husband. 27 July 1984 (134 NLJ 6162, p 619).
The law was to change on 12 October 1984 to its present state under the Matrimonial Causes Act 1973, s 25 (as amended) to require the court to have regard to “the conduct of the parties, if that conduct is such that it would in the opinion of the court be in inequitable to disregard it”. The Law Society’s Standing Committee on Family Law took the view that the court would have to consider conduct at large in every case to establish whether it was such that it would be inequitable to disregard it. So, intoxicated by my journalistic responsibilities, I asked Lord Denning what he thought. This approach now strikes me as constituting gross impudence to such a high degree as to have made it inequitable for me to have continued my column. It was not as if I had bumped into him at the Whitchurch branch of Liptons and gone off to buy him a pint. In the event, Lord Denning responded to me with typical courtesy.
And what does Lord Denning think? Litigation has asked him: “The Act does not really alter the position at all. I should expect judges to proceed in much the same way as they have been doing in the past. Indeed, I think there has been much misunderstanding about the Act, but that it really makes very little difference to the existing law.” 27 July 1984 (134 NLJ 6162, p 619).
Kerb crawling
Kerb crawling became a crime on 16 September 1985: a man (or boy) soliciting a woman for the purpose of prostitution from a motor vehicle—including an electrically propelled bath chair but excluding a pedal cycle—while it is in a street or public place, or in a street or public place while in the immediate vicinity of a motor vehicle that he has just got out of or off. The offence requires persistence or (now) proof that the solicitation was likely to cause annoyance to the woman solicited or to other people in the neighbourhood. We reported on pre-crawling activities in sunny Bournemouth.
Men Only
Bournemouth police recently distinguished themselves by exercising a “tarted up” WPC along one of the town’s lower rated boulevards in an effort to catch kerb-crawlers. As a result, 14 fruity motorists were the other week bound over to keep the peace by local magistrates under the Justices of the Peace Act 1361 and attracted more media attention—The Daily Telegraph was one of the nationals to carry all names and addresses—than would have been suffered by them had they mugged the inciting officer of the law. Perhaps Dorset Constabulary wanted to go down in history as responsible for the last 1361 purge before kerb-crawling becomes a statutory offence. Alas, the 1361 Act is likely to remain almost as active as ever in matters sexual (and rightly so) as “persistently” fought its way back into the Sexual Offences Bill on 21 June 1985 in Lords Committee upon an amendment put by Lord Mishcon which was carried by 33 votes to 22, against Government advice. 6 September 1985 (135 NLJ 6219, p 879).
Not so much a licence, more a tenancy
We had visited Bournemouth the previous year although, we hasten to add, not by car or with any form of persistence in mind other than to investigate how and why the town’s solicitor Roger Street had come to saddle himself with a protected tenant instead of an intended licensee. This is the story behind Street v Mountford.
Licencemania?
Roger Street...drafted what was described as a licence agreement which granted an exclusive right to possession—a significant hallmark commonly associated with a tenancy but not decisive. Why not a Somma ([1978] 2 All ER 1011) non-exclusive grant? Litigation asked him. “I wanted it to be more intelligible, honest and straightforward—to say what it meant,” Mr Street told us. The Street Special contained an agreement by the occupier to take furnished accommodation at a weekly licence fee and contained 10 “rules”.
Mr Street put the agreement to use in relation to residential accommodation—five units—within a building owned by him. One of the units was taken by Mrs Wendy Mountford for herself and her husband. It comprised what her counsel was to describe as “effectively a self-contained flat”. Mrs Mountford signed—twice—a Street Special agreeing to pay £37 per week. But, subsequently, she had a rent of around a mere £14 per week registered by an unconvinced rent officer who took the view that the agreement was a sham. Mr Street was forced into putting his Special to the test. He applied to the Bournemouth County Court under the County Courts Act 1959, s 51A for a declaration as to whether the agreement created a licence or a protected tenancy. Brother solicitor Mr Recorder Rolf declared it created a tenancy. 11 May 1984 (134 NLJ 6154, p 447).
Mr Street appealed the declaration to the Court of Appeal which reversed the recorder ((1984) The Times, 28 April). The case then went to the House of Lords.
Reluctant Landlords
As predicted by Litigation, the House of Lords last month unanimously ruled in favour of the occupier in Street v Mountford giving a kiss of death to exclusive possession licence agreements and, for good measure, a fatal peck to non-exclusive agreements. Wendy Mountford who was the occupier—sorry, tenant—looks destined to stay on in possession until she drops and her Bournemouth solicitor John Chester must be congratulating himself on advising for the rejection of the compromise proposal put forward by solicitor-owner Roger Street between Court of Appeal and House of Lords—Mrs Mountford could have had a protected shorthold for five years at the £14 per week registered rent in return for the abandonment of her appeal. Possibly the only consolation for Street is that he has received some financial help towards his legal costs ( a leader was taken in for the House of Lords) from the Small Landlords Association…who handed over £5,000 chipped in by 296 of its members.
Rent officers and licensees rejoice. Property owners grieve. Small Landlords Association chairman Geoffrey Cutting expects very serious shortage of private rented accommodation by next year. Litigation expects a plethora of test cases in which owners strain to bring agreements within Lord Templeman’s “exceptional circumstances”. He said this: “Henceforth the courts which deal with these problems will, save in exceptional circumstances, only be concerned to inquire whether as a result of an agreement relating to residential accommodation the occupier is a lodger or a tenant…The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own.” 7 June 1985 (135 NLJ 6206, pp 551–52).
Footie at Oxford County Court
These days circuit judges do have jurisdiction to hear a small claim but the queue for doing so is not long and the circuit judge concerned must consent to have the case allocated to them (CPR PD 2B para 11.2). A circuit judge hearing might possibly be the answer to a party’s argument that the case is too complex to be dealt with by a district judge in the small claims track and should be allocated upwards (see CPR 26.1). In 1986 we did not have allocation but we certainly had small claims, albeit with a lower ceiling and we had automatic referral of small claims to arbitration. The position as to which level of judge took the final hearing as arbitrator was much the same as it is now.
Enter Michael Walker from Portchester, Hants. He was a photographic journalist and snapped Pompey putting in the occasional goal at Fratton Park. He also actively supported Pompey which was then a more perplexing pursuit than it is now. In January 1986 Pompey were playing the late Robert Maxwell’s Oxford United away in the Milk Cup quarter final. Walker had bought stand tickets for himself and his three children at £10 each. The tickets stated that they were sold subject to conditions displayed in the ticket office but no such conditions were displayed. It was a disastrous evening. Walker and his children reckoned they had had a poor view of the match and Pompey lost.
To satisfy statutory ground safety requirements, Oxford had erected barriers and pitch perimeter fencing in front of the stand occupied by the Walker family. Oxford United were invited to refund the ticket money but declined and so Walker did the obvious thing. He brought a small claim in the Oxford County Court for damages limited to £200. A defence was filed and Oxford’s central London solicitors applied for the arbitration reference to be rescinded on the ground of the difficulty of the questions of law involved. Stephen Gold was instructed for the plaintiff. Why, that’s me exploiting my own cases again. The registrar refused to rescind the reference having been satisfied by me that the difficult legal questions could be determined by a circuit judge as arbitrator.
On 19 August 1986 I awoke a little earlier than usual. I had to drive to Oxford County Court to present the plaintiff’s claim to Judge Leo Clark. All advocates have experienced the formulation of whacky proceedings to be followed by the dread of preparing for the final defended hearing when there is no prospect of a settlement and the court is over 60 miles away. After a pitch inspection and an all day hearing, judgment was reserved.
Oxford United 1 Walker 0
On 25 September 1986 Judge Clark gave judgment in open court. He dismissed the claim finding against Walker on the facts. Oxford did indeed have to comply with their statutory obligations. But in doing so, if the view from some seats was so bad that a game could not be seen, tickets for those seats should not be sold. At the same time, an implied term was not to be formulated in language that was too vague and too imprecise. There was an implied condition that the seats should be reasonably fit for the purpose of watching the match. Walker had been able to give the judge quite a detailed account of the main features of the game. The judge was satisfied he was able watch the flow of the game and to see how it evolved and how the goals were scored. The view was not as good as Walker would have liked…As poor as the view was, it was not so poor that Oxford were in breach of contract in selling the seats. They were reasonably fit for the purpose. 10 October 1986 (136 NLJ 6275, p 958).
Oxford’s application for costs against Walker was rejected.
Next time: Quickie divorces, Xmas bigamy, stamp duty land tax, fixtures and fittings, and untidy gardens
