Contract Law - 
chicken cases
Macklin v Secretary of State for Work and Pensions [2008] All ER (D) 413 (Feb)
The employee commenced her employment in 1979. She was a capable, hardworking and high performing member of staff. On 6 June 1989, she was diagnosed as having diabetes. That required managing through insulin injections, proper and regular eating and the maintenance of a healthy lifestyle, including monitoring of her weight. Her GP noted, on 12 August 1995, that she'd a 'poor lifestyle' and that she'd been recently overworking. She suffered from chicken pox and shingles later that year. In late 1998, the employee was diagnosed as suffering from depression. Between 21 May and 3 June 2001, she was off work due to an abscess related to her diabetes. In May 2001, she was informed of an allegation of bullying and harassment lodged against her. Following a lengthy investigation process, the employer decided to take no punitive action against her on 20 May 2002. By then she'd been off sick suffering from anxiety and depression since September 2001. She never returned to work before her dismissal, which took effect on 2 July 2004. Between 20 September 2001 and 2 April 2004, the employer had commissioned several occupational health service reports and regular contact had been kept with the employee. Subsequently, she presented a claim before the employment tribunal alleging that the employer had failed to make reasonable adjustments in relation to her disabilities, contrary to the provisions of the Disability Discrimination Act 1995 (as originally enacted), and that her dismissal had been unfair and had amounted to discrimination on the ground of disability. The tribunal allowed the employee's claims. The employer appealed. It submitted, inter alia, that the tribunal's reasoning in relation to the issue of the duty to make reasonable adjustments was flawed. That flaw was, in turn, fatal to the tribunal's subsequent findings relating to unfair dismissal and disability discrimination by reason of dismissal. Held – The appeal would be allowed. In the instant case, the tribunal had fallen into error by failing properly to address its mind to the correct questions raised in the stage by stage process of determining the question of whether the employer had failed to make reasonable adjustments. Once that error had been made, it was fatal to the tribunal's subsequent conclusions relating to the employee's dismissal. accordingly, the matter would be remitted to a differently constituted tribunal for fresh consideration. (Citation information only)
R v Bristol [2007] EWCA Crim 3214, 172 JP 161, 172 JPN 421, [2007] All ER (D) 47 (Dec)
The defendant was standing in the street in the West End of London. He was approached by uniformed police officers, who were aware that that street was a common place for drug deals to take place. They saw something in the defendant's mouth, and asked what it was. The defendant said that it was chicken. One of the officers, Police Constable Mason, believed that the defendant was going to swallow the item and, believing it to be drugs, applied pressure to his throat to stop him swallowing it. As the police officer did so, he said 'Drugs search. Spit it out'. Nothing was found. A struggle ensued. The defendant was charged with intentionally obstructing a police officer in the execution of a search, contrary to s 23 of the Misuse of Drugs Act 1971. At his trial, the defendant submitted that there had been a breach of s 2 of the Police and Criminal Evidence Act 1984 and that, accordingly, the judge should withdraw the case from the jury on the ground that the defendant could not be guilty of the offence. The judge rejected that submission, stating that the question was whether in all the circumstances, it had been reasonable for the police officer to convey his name and police station to the defendant. The defendant was convicted. He appealed against conviction. The defendant conceded that when the officer had seen him with something in his mouth, he'd been entitled to search him under s 23(2) of the 1971 Act. The prosecution conceded that s 2 of the 1984 Act applied to that search so that any breach of that provision meant that the search was unlawful. It was common ground that where there was a breach of that provision, the defendant's conviction could not stand. accordingly, it fell to be considered whether there was evidence that the police officer had taken reasonable steps to say his name and police station. The prosecution submitted that a liberal view should be taken of the provisions and that Parliament had surely intended that if, in the circumstances of a case such as the instant case, a defendant might swallow drugs, a police officer was entitled to act without saying his name or police station. Held – The appeal would be allowed. The wording of s 2 of the 1984 Act was clear. On the authorities, it was plain from the mandatory words in s 2(2) that that any search initiated without prior compliance with the duty to disclose the information required to be given under s 2 was an unlawful search; that if there was any doubt about the importance of that provision, it was reinforced by the simple reflection that any search of anyone was a trespass to that person requiring proper justification in law, and where a search was being carried out pursuant to statutory powers, where no reasonable suspicion was needed, that qualification would be doubly appropriate. While there was an element of formality in the prescribed procedure, which was perhaps an unjustified use of a police officer's time because he had to announce his name and police station to each person about to be searched, it was important for civil liberties. The requirements were clear. It wasn't the case that Parliament had legislated that a police should say the words if reasonable in all the circumstances, but rather, that specific steps had to be taken. The question in the instant case was whether there was any evidence that the officer had taken reasonable steps before searching the defendant to bring to his attention his name and police station. All that the officer had had to say was 'Mason. Charing Cross. Drugs search. Spit it out'. He needed to have said no more, nevertheless, Parliament had specified that he had at least to say that. In the circumstances of the instant case there was no evidence that the police officer had taken reasonable steps to say the words and it was common ground that he'd not said them. The judge appeared to have taken the impermissible view that the police officer need only say the words if it was reasonable in all the circumstances for him to do so. In the instant case, it had simply been asserted that the officer had been unable to state the necessary words; however, there was no evidence that that was the case. He had had to say only three words. It was impossible to find that those words could not have been said. It followed that there had been a breach of s 2 of the 1984 Act. The officer had, accordingly, not been acting in the execution of his duty. The conviction would be quashed. (Neutral treatment indicated)
FTS International BV v Belastingdienst - Douane West: C-310/06 [2007] All ER (D) 288 (Jul)
Council Regulation (EEC) 2658/87 (on the tariff and statistical nomenclature and on the Common Customs Tariff), empowered the Commission to clarify the meaning of a tariff heading. Article 9 of that regulation provided that measures relating to the following measures should be adopted, including the application of the Combined Nomenclature concerning the classification of goods; amendments to the combined nomenclature to take account of changes in requirements relating to statistics or to commercial policy; amendments to the combined nomenclature meant to adapt it to take account of technological or commercial developments or aimed at the alignment or clarification of texts. Article 9 of that regulation constituted the basis for Commission Regulation 1223/2002 (concerning the classification of certain goods in the Combined Nomenclature), which provided that, inter alia, the following goods were to be classified under 0207: boneless chicken cuts, frozen and impregnated with salt in all parts, with salt content by weight of 1.2% to 1.9%. FTS imported into the Netherlands chicken cuts, boneless, frozen and with a salt content of between 1.4% and 2.9% originating from Brazil. On the basis of Regulation 1223/2002, the Netherlands customs authorities classified the goods under subheading 0207 14 10 (meat and edible offal, poultry; cuts and offal, frozen, boneless). It dismissed the applicant's objection, the applicant having maintained that the good were covered by subheading 0210 99 39 ( meat and edible meat offal, salted, in brine). The national court stayed proceedings and referred the question of whether the regulation was valid to the Court of Justice of the European Communities for preliminary ruling. Held - Regulation 1223/2002 was invalid. The Commission had a broad discretion to define the subject-matter of tariff headings falling to be considered for the classification of particular goods. However, the power to adopt the measures mentioned in art 9 of Regulation 2658/87 didn't authorise it to alter the subject-matter of the tariff headings which had been denied on the basis of the Harmonised Commodity Description and Coding System (the HS) established by the Convention, whose scope the Community had undertaken not to modify. By classifying goods whose salt content was between 1.2% and 1.9% under subheading 0207 14 10, Regulation 1223/2002 had raised the threshold for the salt content of goods covered by heading 0210 beyond 1.9%, which had had the result that goods whose salt content was between 1.2% and 1.9% and which had until then been covered by heading 0210, were excluded from that heading and classified under 0207 14 10, with a resulting increase in duty. The Commission had thereby restricted the scope of heading 0210 and had exceeded the powers which were conferred on it under art 9 of Regulation 2658/87.
Hanco ATM Systems Ltd v Cashbox ATM Systems Ltd [2007] EWHC 1599 (Ch), [2007] All ER (D) 139 (Jul)
The claimant company distributed and serviced automatic teller machines (ATMs). The claimant was the former employer of the second to fifth defendants, who had all resigned from the claimant. The second defendant was a former director of the company and had had access to sensitive business information relating to the claimant's customers. He had been responsible for negotiating a contract for the supply of ATMs on behalf of the claimant and, while still employed by the claimant, he incorporated a company (the first defendant), which carried out similar work to that of the claimant, and he submitted a bid for that contract on the latter's behalf, which had significantly undercut the claimant's bid. The second defendant subsequently resigned and the claimant issued proceedings alleging, inter alia, that he'd misappropriated the claimant's client database and had acted in breach of his contract of employment and fiduciary duty. In the particulars of claim, the claimant alleged that the second defendant and other former employees had used, inter alia, its 'terms and conditions' in breach of confidence. However, the pleadings had not alleged that as against the first defendant. At trial, the second defendant gave evidence that most of the details of the existing contractual arrangements between its ATM clients and ATM suppliers had been made public in order to stimulate competition. Following the claimant's application for summary judgment and an interim payment against the first and second defendants, the master found that inter alia, the second defendant was in breach of his fiduciary duty and that the first defendant was in breach of confidence in respect of its receipt and use of the claimants' terms and conditions. The first defendant appealed against that decision. The first defendant submitted that, inter alia, the master had failed to appreciate that the claimant had not advanced an argument alleging that it had been in breach of confidence by its knowing receipt of, and use of the claimant's 'terms and conditions'. It was further submitted that the master had failed to consider the evidence of the second defendant that most clients in the ATM industry had been prepared to make details of their existing contractual arrangements with the ATM suppliers, public. Held - The appeal would be allowed.In the instant case, there had been no plea as against the first defendant alleging its receipt and use of the claimant's 'terms and conditions' in breach of confidence and accordingly, the finding against the first defendant in that regard had not been sustainable.
Hughes v Grampian Country Food Group Ltd (2007) Times, 4 June, 2008 SCLR 157
The pursuer was employed from about 1991 as a process worker carrying out, amongst other things, the trussing of the wings and legs of chicken carcasses using elastic strings. In about 2000 she developed carpal tunnel syndrome of her left wrist, which was aggravated by her work conditions, and she raised an action for damages for personal injuries in respect of the aggravation. The Lord Ordinary assoilzied the respondents but assessed damages at £1,763. The pursuer reclaimed against the interlocutor granting decree of absolvitor. The issue between the parties was whether the Regulations applied to the work on which the reclaimer was engaged. Counsel for the reclaimer argued that the Framework Directive set a 'goal setting' objective to be achieved with reference to the health and safety of workers and wRegarding be given a purposive construction. The circumstance that the Directive envisaged, work dealing with the handling of heavy loads involving a risk of back injury, didn't restrict the scope of the 'daughter' Directive or of national regulations made in furtherance of it to 'heavy' loads or to the risk of 'back injury'. The words 'particularly of back injury' were used in the Regulations pointing to injury of that kind not being its exclusive scope. Further, the Regulations went beyond questions of any risk being occasioned by the bearing of weight. The Regulations should be given a purposive construction consistent with the objective of protecting employees from harm. accordingly the moving of any object manually would, if done by an employee, involve a manual handling operation and 'load' required to be given a wide meaning. The risk arising, provided it was foreseeable, didn't need to be arising from the load. It was inappropriate to break down the operation on which the reclaimer was engaged into different parts. It was a continuous process amounting to a manual handling operation. The Lord Ordinary should be reversed on the basis that it clearly appeared from the evidence that the reclaimer was engaged in an operation which involved supporting and moving the chicken carcasses or, more generally, on the view that 'load' and 'supporting and transporting' were not to be construed restrictively. Counsel for the respondents argued that the case for the reclaimer was that if there were some elements of pushing or pulling of the carcasses in the course of trussing them and if such trussing involved some foreseeable possibility of injury, the respondents were liable in damages. The process wasn't a manual handling operation and it could not be said that any basis for opening up the Lord Ordinary's factual conclusions had been demonstrated. It could not be said that the Lord Ordinary had gone plainly wrong in the factual conclusions at which he'd arrived. Common sense should be applied to the interpretation of the Regulations. Held - (1) that it would offend against common sense to suppose that the framers of the Regulations meant to bring within their scope the activities of the seamstress lifting and replacing her needle, the librarian turning the pages of a book or the employee throwing an electrical switch and accordingly unless compelled by the absence of any tenable alternative the construction proposed by the reclaimer which appeared to make virtually every human activity, other than the purely cerebral, one of manual handling, was rejected; (2) that in none of the Framework Directive, the Manual Handling Directive or the Regulations was 'load' defined but none of the contexts in which that expression was used supported the concept that it was used in a scientific as distinct from an ordinary sense--of something which, by its weight, in the context of how it was being handled, presented a risk of injury and while the Regulations could and might have given wider protection than either of the Directives, the scope didn't extend as far as contended for; (3) that although it might be difficult to define with exactness the scope of the Regulations, in any particular case their applicability or otherwise had to be determined as a practical exercise by the use of common sense and it might be that in some circumstances the purpose for which the item in question was being used might be of assistance although the purpose of the activity could not be regarded as a conclusive test; and (4) that it wasn't demonstrated that the Lord Ordinary failed to take proper advantage of having seen and heard the evidence, or that there was any other basis upon which the court could hold that he wasn't entitled to conclude that the operation on which the reclaimer was engaged wasn't a 'manual handling operation' within the meaning of the Regulations; and reclaiming motion refused.
Button (reference under section 6 of Sch 22 to the Criminal Justice Act 2003), Re [2007] EWHC 1162 (QB), [2007] All ER (D) 274 (May)
The offender and two others had been drinking excessively. They went to a Kentucky Fried chicken restaurant to order some food. Whilst in the queue, the offender encountered the victim. The offender received a shove on the shoulder and believed that the victim was queue jumping. An altercation between the offender and the victim then occurred. After the altercation had settled, the offender left the premises. He went to his nearby van to collect a piece of wood. He decided not to return to the restaurant, but to wait for the victim in his van. When the offender saw the victim leave the premises, he struck him with the piece of wood. The victim fell to the ground and was kicked and stamped on by the offender and his two accomplices. The group then fled the scene. The victim died shortly after. The next day, the offender surrendered himself to the police and admitted that he'd struck the victim with the piece of wood. Thereafter, the offender pleaded guilty to murder. The sentencing judge formally convicted the offender of murder and passed a mandatory life sentence. He observed that the offence had been aggravated by: (i) the fact that the offender had acted with revenge; (ii) his use of the piece of wood as a weapon; (iii) the fact that he'd been under the influence of alcohol; and (iv) the fact that the violent assault had been inflicted by a group acting in concert. The judge further observed that the offender had not meant to kill the victim, although violence had been intended. The substantial number of testimonials which had been made in the offender's favour, the offender's co-operation with the police, and his guilty plea were also taken into account. In light of those observations, a minimum term of 11 years' imprisonment was recommended. The then Lord Chief Justice endorsed the judge's comments and his recommendation. The matter was subsequently referred to the High Court by the Secretary of State, for a minimum term to be set, pursuant to section 6 of Sch 22 to the Criminal Justice Act 2003. Held - Having regard to the fact that it wasn't possible to specify a minimum term which was greater than that which would have been notified under the practice followed by the Secretary of State prior to December 2002, and to the recommendations of the sentencing judge and the then Lord Chief Justice, the starting point was 15 years' imprisonment. On the basis of the offender's mitigation, however, that figure would be reduced by 4 years.Accordingly, the date at which the offender could be considered for his early release would be 11 years' imprisonment less the 296 days that he'd spent in custody on remand.
Boparan v Revenue and Customs Comrs [2007] STC (SCD) 297, [2007] SWTI 552
The taxpayer and his wife jointly owned chicken farms and mills which supplied chicken feed. They let the farms and mills to a company on normal commercial terms. Ninety-nine per cent of the shares in the company were owned by a holding company in which all the shares were held by the taxpayer and his wife. The taxpayer ran the holding company with little input from his wife. He showed her the accounts before she signed them, but she didn't ask about the details or question his decisions because she trusted his business acumen. The holding company exercised its votes in the subsidiary in the way the taxpayer wanted them exercised. Between 31 March 2001 and 24 October 2002, the taxpayer and his wife sold certain farms and feed mills. They acquired replacements between 3 April 2001 and 2 December 2002, and let them to the subsidiary on normal commercial terms. The taxpayer claimed roll-over relief in respect of those transactions under s 1521 of the Taxation of Chargeable Gains Act 1992. By s 152, if the consideration a 'person carrying on a trade' obtained for old assets was applied in acquiring new assets, he wRegarding be treated as though neither a loss nor a gain accrued. By s 1572, where the person was an individual, and the trade wasn't carried on by him but by his 'personal company', any reference in s 152 to the 'person carrying on the trade' included reference to that individual. 'Personal company' was defined in section 1(2)3 of Sch 6 to the Act, as 'any company the voting rights in which are exercisable, regarding not less than 5 per cent, by that individual'. The taxpayer could only claim roll-over relief in respect of the disposals and acquisitions of the farms and mills if the subsidiary was his 'personal company' within section 1(2) of Sch 6. The question referred to the Special Commissioner was whether the subsidiary was the taxpayer's personal company. For the taxpayer it was submitted that 'exercisable' in section 1(2) was the dictionary meaning 'able to be exercised'. It was submitted that if the taxpayer was 'able' to ensure that the votes in the subsidiary were exercised by him through his voting rights in the holding company, then the votes in the subsidiary was exercisable by him. His case was that by virtue of the voting rights attaching to his own shares in the holding company and de facto control over his wife's voting rights, he'd the ability to ensure that the holding company exercised the voting rights in the subsidiary according to his wishes so that 99% of the voting rights were 'exercisable' by him. The Revenue submitted that the voting rights attaching to the shares in the subsidiary, which were held by the holding company, were exercisable by the holding company and not by any individual. Held - The subsidiary wasn't the taxpayer's personal company for the purposes of s 152 of the Act. Whether the voting rights in the subsidiary were exercisable by the taxpayer for the purposes of the definition of 'personal company' wasn't a question of fact, but a mixed question of fact and law. It was necessary to ascertain what 'voting rights which are exercisable in a company' connoted for the purposes of the legislation. It was far too wide a construction of that expression to hold that it could attribute exercisable voting rights to any person who was able, as a matter of fact, to exercise voting rights on behalf of another. Such a construction would sever the ties of ownership between the personal company and the individual whose personal company it was which were essential in the scheme of roll-over relief. It would also lead to multiplied entitlements, where voting rights could give entitlement to two or more individuals. It was a necessary requirement of qualification for roll-over relief that the assets were used in a trade carried on by (and therefore owned by), in principle, the individual disposing of the assets. It would be extraordinary and wrong if the definition of 'personal company' were to be construed to allow relief in the case of gains accruing on the disposal of assets owned by an individual and used for the purposes of a trade carried on by a company in which that individual had no (or no sufficient) degree of ownership, but over which as a matter of fact he exercised influence short of ownership. The conclusion for which the Revenue contended was inescapable on the statutory wording.
Owers v Bailey [2006] 39 LS Gaz R 34, [2006] All ER (D) 106 (Sep) Court: Ch D
The claimants were the freehold owner of a dwelling house and adjoining meadowland. The defendant was the freehold owner of a neighbouring dwelling house. A track, of unknown ownership, ran between the two properties, partially over the meadowland owned by the claimants. The defendant's predecessor in title had acquired the property on 13 March 1981 along with the meadowland subsequently owned by the claimants. In July 1991, the defendant's predecessor had also acquired the claimants' dwelling property. The claimants purchased their property on 7 September 2001. At that time, the only access the claimants had to their property was by way of the track. The defendant's predecessor provided a statutory declaration stating that since purchasing the defendant's property in 1981 he'd used the track as an agricultural access and that his right to do so had never been challenged. What's more, he stated that after purchasing the claimants' property in 1991, the track had been used as a means of access to that property. The claimants also obtained a statement from a local resident who stated that the track had been used as an access route to their property since at least 1957. The defendant's predecessor fenced a boundary between the properties in such a way regarding make the track inaccessible to his retained land, and he subsequently never sought to use the track. The defendant became the registered freeholder of his property on 25 April 2002. A dispute ensued concerning the usage of the track. During that dispute the defendant had interfered with the claimants' use of the track by, inter alia, parking a tractor across the track thus preventing vehicular access, erecting a chicken wire fence and erecting two gates across the track thereby preventing the claimants form using the track to access their property. What's more, the defendant, on several occasions, had been threatening and abusive towards the claimants. The claimants issued proceedings by which they sought a declaration that their property enjoyed a legal right of way, acquired by prescription, over the track, injunctive relief to prevent the defendant from continuing to obstruct their enjoyment of that right of way and damages for the defendant's interference with that right. Several issues fell to be determined including, inter alia: (i) whether the claimants had a legal right of way over the track; and (ii) if so, whether the defendant's conduct had constituted an actionable interference with the enjoyment of that right. Held - The claim would be allowed. Having regard to the statutory declaration of the predecessor in title, claimants' witness statement, both they and their predecessor in title had used the track as of right and continuously since 1957. In those circumstances the claimants had established that they were entitled to use the track as a legal easement of way. The defendant's obstruction of the track coupled with his aggressive and abusive behaviour towards the claimants had been an actionable interference with that right and, accordingly injunctive and compensatory relief would be granted.
Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas: C-353/04 [2006] All ER (D) 37 (Sep) Court: ECJ
In December 1997 and February 1998, the applicant in the main proceedings declared for export two consignments of frozen chickens. On both occasions the German customs office examined the goods and took a sample and reserve sample. It was found that some of the chickens in both samples taken in 1997 had protruding thigh bones. In the case of the 1998 consignment, only the first sample had chickens with protruding broken bones; the reserve sample contained no defects. A dispute arose thereafter regarding whether the goods had been of sound and fair marketable quality, and whether the applicant was entitled to an export refund from the taxation authorities. In particular, the applicability of Commission Regulation (EEC) 1538/91 (which introduced detailed rules for implementing Regulation (EEC) 1906/90, which laid down minimum quality standards for poultry) was disputed, as was the meaning of Council Regulation (EEC) 2913/93. Questions were accordingly referred to the European Court of Justice for determination. Held - (1) For the purposes of establishing whether a product in respect of which an export refund was sought was of 'sound and fair marketable quality', Commission Regulation (EEC) 1538/91 applied. (2) In circumstances such as the instant case, art 70 of Council Regulation (EEC) 2913/93 applied, subject to the proper conduct of the examination referred to therein, where it was necessary to establish whether a product in respect of which an export refund was sought was of 'sound and fair marketable quality'; moreover, the legal fiction relating to uniform quality in art 70(1) didn't apply if the size of the sample taken was insufficient having regard to art 7 of regulation 1538/91. (3) In cases such as the instant, it was for the national authorities to establish the facts by taking account of all the evidence, and to assess the exporter's conduct and that of the customs authorities.
Nyateka v Queenscourt Ltd [2007] All ER (D) 246 (Jan) Court: EAT
The employee, a black female, was employed as a team leader at a branch of the Kentucky Fried chicken franchise, owned by her employer. On one particular shift, the employee alleged that a manager of that branch had said to her, 'maybe I am being racist to a black woman, the lowest of the low' and further 'maybe it's because you're black'. An officer of the employer's human resources department investigated the matter. As a result of that investigation, the employee was invited not to come into work; however, she wasn't formally suspended. The manager was permitted to continue to work at the same branch after taking a short break. The employee accordingly commenced proceedings in the employment tribunal. The tribunal found: (i) that the investigations by the employer had been carried out reasonably and properly; (ii) that the employee's claims of racial discrimination and harassment against her had been well founded, and; (iii) that her claim that she'd been dismissed had been incorrect. Following those decisions, the employer instructed a consultant with expertise in race relations to carry out an investigation on its behalf. The consultant chose not to interview the employee, and the employer formally dismissed her at a later date. The employer appealed against the tribunal's decisions. Issues arose, inter alia, regarding whether the tribunal had been correct to find that the employer's conduct had amounted to harassment, and whether the subsequent decision taken not to invite the employee to participate in grievance investigations had been discriminatory on the grounds of the employee's race. Held - The appeal would be dismissed. In the circumstances, the tribunal had been entitled to find that the employer's conduct had amounted to harassment, but had erred in respect of the employer's failure to invite the employee to participate in investigations into her grievances. That failure had not been discriminatory to the employee. A small reduction in compensation for the employee's injury to feelings would be ordered.
R v West [2006] EWCA Crim 1843, [2006] All ER (D) 150 (Jul) Court: CA
The defendant, aged 31, his two co-defendants, and the victim were homeless and had all been sleeping on the streets. The defendant had an argument with the victim after which he took the victim against his will under a bridge, assaulted the victim and left him to drown in a canal. At trial witnesses for the prosecution gave evidence that they had seen the defendant on the evening of the murder at a burger bar and that he'd said that he was ordering the victim's last meal and that he was going to kill him. Two further witnesses gave evidence that the defendant had confessed to them that he'd killed the victim. The prosecution adduced evidence of the defendant's DNA on a cigarette found on a path near to the canal. Further, the victim's blood had been found on the defendant's tee-shirt, as well as on another co-defendant's jacket and boots. The defendant denied killing the victim. He said that he, the victim and co-defendants had all been drinking alcohol at the river. He had gone back to a chicken burger shop, ordered some food and then returned to the bridge where he saw his co-defendant hit the victim. The prosecution adduced CCTV footage in which the defendant could be seen with his arms around the victim and walking towards a canal. His two co-defendants could be seen walking behind them. The prosecution called an expert witness to interpret the images of the CCTV footage, which was of poor quality. Counsel for the defendant objected to the prosecution calling an expert witness to interpret the CCTV images on the basis that it wasn't expert evidence. The judge admitted the evidence and ruled that it was expert evidence. At the end of that evidence counsel for the defendant applied for the jury to be discharged alleging that prejudice had been caused when the expert gave evidence outside his area of expertise and made negative comments in relation to the defendant. The judge rejected his application. Shortly before a co-defendant gave evidence, counsel for the defendant applied to cross-examine the co-defendant on his previous convictions. That application was refused on the basis that the requisite notice had been served late and that it would have been unfair to that co-defendant. Counsel for the defendant renewed his application to cross examine the co-defendant on his previous convictions after the co-defendant had blamed the defendant for the victim's death during his cross examination. The judge refused the application on the basis that there was no issue between the defendant and that co-defendant; instead he concluded that the issue had been between the co-defendant and the prosecution. A further issue related to a witness who the prosecution had failed to disclose to the defendant, who, some weeks after the murder, had told the police that the co-defendant with previous convictions had confessed to killing the victim. That witness had made two statements, the first of which implicated the co-defendant, and the second implicated the defendant. The defendant was convicted of murder and false imprisonment. His co-defendants were both acquitted. The defendant was sentenced to life imprisonment with a determinate period of 14 years and 3 months. He was sentenced to 18 months imprisonment, to run concurrently, for false imprisonment. He appealed against conviction. He submitted, inter alia, that the judge had erred by failing to allow him to cross-examine his co-defendant on his previous convictions which had probative value to an important issue and was admissible pursuant to s 101(e) of the Criminal Justice Act 2003. He further submitted that the judge erred by failing to discharge the jury following the prejudicial effect on the defendant's case caused by the prosecution's failure to disclose a witness, whose initial statement would have been helpful to the defendant's case. He renewed his application for leave to appeal on the ground that the judge erred in admitting the evidence of the expert witness. Held - The appeal would be dismissed. While the judge had erred in refusing to allow cross-examination of the co-defendant on his previous convictions, it didn't follow that the jury might have acquitted the defendant and convicted the co-defendant had they had the evidence of the co- defendant's previous convictions. The evidence against the defendant had been strong and compelling. The judge had properly directed the jury to consider each case against the defendant and co-defendants. The evidence of the expert witness was admissible pursuant to s 101(e) of the Criminal Justice Act 2003. Whilst an expert should not stray outside the area of his expertise, in the instant case the effect of his evidence had not been so prejudicial that it could not be cured. The judge's direction to the jury on the CCTV evidence had been sufficient to prevent the jury from being influenced by any prejudicicial remarks. The failure of the prosecution to disclose a witness to the defendant was a substantial error. However, that witness' second statement would not have been helpful to the defendant and the court was satisfied that that error had not rendered the verdict unsafe.
Broughton v Bower [2006] EWCA Civ 632, 150 Sol Jo LB 707, [2006] All ER (D) 371 (May) Court: CA
In 1973, the claimant's husband conveyed a property to the defendants' predecessors in title, who entered into restrictive covenants for the benefit and protection of the retained property in which the claimant and her husband resided. Those covenants stated, inter alia, that: the conveyed property should only be used as a single private dwelling house and/or for agriculture except that in no circumstances should female cattle be permitted to be kept on the property; and no pigeons or undomesticated animals should be kept on the property. In 1995, the claimant commenced proceedings against the defendants alleging that the defendants had breached the covenants by keeping horses, ponies and geese on the property. The action was compromised by consent and an order was made. The defendants made undertakings that they would not '(3) ... keep any undomesticated animals (including horses, ponies and geese) upon the land' and '(4) use the land ... for any business other than that of agriculture'. In 2004, the claimant applied for a declaration that on the true meaning and effect of undertaking (3) 'undomesticated animals' included not only horses, ponies, geese and female cattle but also male cattle, sheep, ducks, peacocks, turkeys, chickens, game birds and fowl and poultry of any kind. The claimant also claimed that the cumulative effect of undertakings (3) and (4) was that in the event of the defendants using the property for the business of agriculture the defendants were still not entitled to keep there any undomesticated animals within the meaning of undertaking (3). Subsequently, the judge hearing the application made a declaration that in addition to horses, ponies, geese and female cattle 'undomesticated animals' also included male cattle, sheep, ducks, peacocks, turkeys, chickens, cockerels and quail. However, he added a proviso that any of those species, with the exception of female cattle, might be kept by the defendants if they were kept in connection with the business of agriculture. The claimant and the defendants appealed. Issues arose regarding whether the judge had erred in his interpretation of the effect of undertakings (3) and (4). Held - The appeals would be allowed. In the circumstances, it was plain that the words 'undomesticated animals (including horses, ponies and geese)' could not have the effect of putting those animals within the category of undomesticated animals; all that they had done wRegarding extend the meaning of the expression so far as was necessary to prohibit the keeping of three defined species of domesticated animals. accordingly, contrary to the judge's interpretation, the defendants were entitled to keep all domesticated animals, other than horses, ponies, geese, female cattle and pigeons, and in particular that they were entitled to keep male cattle, sheep, ducks, peacocks, turkeys, chickens, cockerels and quail. In the instant case, it was clear that undertaking (3) had prohibited the keeping of undomesticated animals, together with horses, ponies and geese. accordingly, the effect of undertaking (4) wRegarding prohibit the use of the property for any business other than that of agriculture, but in connection with that business it was impermissible to keep the animals which the defendants were prohibited from keeping by virtue of undertaking (3). accordingly, contrary to the judge's interpretation, the defendants were not entitled to keep undomesticated animals, including female cattle, horses, ponies and geese, whether or not they were kept in connection with the business of agriculture. The judge's declaration would be quashed and a declaration would be made in the terms sought by the parties.
Silveira v Brocklebank [2006] All ER (D) 157 (Feb) Court: EAT
The claimant was a Portuguese national. She was brought from Portugal to the United Kingdom on the basis of an arrangement made by a recruitment or employment agency. One of the owners and managers of the agency was the respondent. Arrangements were made to place the claimant with a chicken factory. As part of the procedure for arranging that employment the claimant had completed forms for the agency on which she indicated, inter alia, that she was pregnant. The chicken factory informed the agency that there would be a need for a risk assessment sheet to be completed by the agency before the actual placement in employment of the claimant could be taken further. No such risk assessment sheet was completed. The claimant applied to the employment tribunal for compensation for sex discrimination arising from the fact that she'd not been assisted by the employment agency in obtaining employment by reason of their sex discrimination against her, through deliberate omission to provide the risk assessment which the prospective employer required. She argued that it was contrary to s 15 of the Sex Discrimination Act 1975 which provided that it was unlawful for an employment agency to discriminate against a woman by refusing or deliberately omitting to provide any of its services. The tribunal made a clear finding that the undertaking at a first level risk assessment was one of the services to be provided by the agency and that the failure to do so had been a deliberate omission. accordingly, they found the requirements of s 15 were satisfied, namely that it was unlawful discrimination to fail to provide a risk assessment where firstly, that risk assessment was required by a pregnant woman and secondly it wasn't provided in circumstances which amounted to sex discrimination for the purposes of the 1975 Act. The respondent appealed. She made submissions on paper that, inter alia, (i) the tribunal made an error of law because it allowed the claim even though it had not found any intention by the agency to deliberately discriminate on the grounds of sex against the claimant; and (ii) the tribunal had erred in law in finding that there had been a deliberate omission to carry out a risk assessment. Held - The appeal would be dismissed. It was no part of the law that, in treatment of a pregnant woman, it had to be shown that an employment agency deliberately meant to discriminate on the grounds of sex. The tribunal had set out the correct position in law and had amply set it out in their decision. What's more, it was quite plain that the tribunal, having heard all of the evidence and the submissions before it, demonstrated no error of law in reaching the conclusion they did regarding the deliberate omission point.
Peter Biegi Nahrungsmittel GmbH v European Commission: C-499/03 P [2005] All ER (D) 57 (Mar) Court: ECJ
The appellant German companies were importers of chicken meat into Germany. Article 3 of Council Regulation (EC) 774/94 opened a Community tariff quota for certain poultry meats. Article 1 of Commission Regulation (EC) 2198/95 set the relevant duty within that quota volume at 0% for the purposes of the common customs tariff. Article 1 of Commission Regulation (EC) 1431/94 provided that all imports under such a tariff quota were subject to the presentation of an import licence. Annex 1 specified the quantities of products and the reduction in levy applicable based on the country of export. Council Regulation (EEC) 2658/87, which established a common nomenclature (CN) for goods, was amended by Commission Regulation (EC) 1359/95. Order 18 of the first annex, as amended, contained the CN code for certain poultry meats, a description, the quota quantity of that particular meat and the applicable rate of duty. The Regulation, as amended, contained no reference to a requirement for an import licence. The working tariff of the German customs authorities was amended to include the zero duty. It also contained no reference to any requirement for an import licence. The applicants declared the importation of various consignments of poultry meat, but attached no import licences to those declarations. The German customs authorities, relying on their working tariff, exempted the applicants from customs duties. The applicants had doubts about the duties that had been applied and telephoned the customs authority. Although they were told that zero duty was correct even without an import licence over the telephone, the written response of the customs authorities shortly after that conversation made it clear that an import licence was in fact required. The customs authorities decided retrospectively to recover the duties payable on the various consignments. The applicants unsuccessfully challenged that decision before the national courts. The German authorities asked the European Commission to rule on whether, under art 220(2)(b) of Council Regulation (EEC) 2913/92, which established the Community Commercial Code (the CCC), it would be justifiable to waive retrospective accounting for the import duties in the administration's disputes with the appellants. Article 220(2)(b) of Regulation 2913/92 provided that the authorities were not to make subsequent entry in the accounts of import duties if three cumulative conditions were satisfied: (i) the failure to collect duties had to have been due to an error by the authorities themselves; (ii) their error had to be of a kind that it could not reasonably have been detected by a person liable for payment acting in good faith; and (iii) that person had to have complied with all the provisions laid down by the legislation in force regarding his customs declaration. The Commission held that the circumstances didn't reveal an error by the customs authorities themselves, not detectable by an operator acting in good faith. It therefore held that the import duties should be taken into account. The appellants brought actions for the annulment of the decisions. The proceedings were joined. The Court of First Instance dismissed the action and the appellants appealed. The issue on appeal was whether the errors of the German authorities (which were admitted) could reasonably have been detected by the appellants. Held - The appeal would be allowed. The Commission had been wrong to consider that the circumstances of the cases didn't disclose any error of the German customs authorities not detectable by an operator acting in good faith within the meaning of art 220(2)(b) of the CCC. Commission Regulation (EC) 1359/95 in itself contained an ambiguity regarding the actual scope of the points in it concerning the tariff quotas. It wasn't sufficiently simple for it to be easily detectable from an examination of them that, from July 1995, use of the tariff quotas relating to those goods remained subject to the condition, laid down in Regulation (EC) 1431/94, of producing an import licence. Moreover, the error had been committed by the highest German customs authorities themselves who, when amending their working tariff to take account of Regulation 1359/95, omitted to state that the importation of the goods covered by the codes was subject to production of an import licence. That error was also not corrected until several weeks after the publication of that document.
McInally v Grampian Country Food Group Ltd [2005] All ER (D) 128 (Jan) Court: EAT (Sc)
The employer, which reared chickens, determined upon a reorganisation of its food division at a certain location. In essence, it was proposing a change in shift patterns so regarding enable continuous working, seven days a week. At the time when the employers were seeking to implement their proposals, the employee was absent due to illness. When he returned, he continued to work the old patterns, but was monitored regarding his ability to handle night shifts. At that time, all other relevant workers, albeit with reluctance and in some cases under protest, accepted the new provisions and pay structure. At the end of the monitoring period, the employee insisted on a substantial financial settlement before he would accept any proposals. The employer declined to make such a payment and the employee was dismissed. The employee complained to the employment tribunal of unfair dismissal. The tribunal held, inter alia, that the dismissal could not have been other than for 'some other substantial reason', a potentially fair reason for dismissal under s 98(1)(b) of the Employment Rights Act 1996, but went on to find that in the instant case the employee had failed to establish a substantial reason. The employer appealed. Held - The appeal would be allowed.It had been perverse of the tribunal to hold that there was no or no sufficient evidence to justify a finding of some other substantial reason.In the circumstances, the evidence did reveal some other substantial reason. The tribunal should have considered the whole situation at the time of dismissal. It had to be borne in mind that at that time, the employee was the only relevant employee who had not accepted the new regime. It was a relevant factor that the dismissal had been necessary to prevent one man from continuing to work on the old system, a state of affairs which could have led to discontent amongst the other employees. The decision of the employment tribunal would, accordingly, be quashed and substituted with a finding that the employee had been dismissed for some other substantial reason.
Randall v Randall [2004] All ER (D) 570 (Jul) Court: Ch D
Following the death of the husband in 1991, the testatrix had been the freehold owner of land in Kent, on which were two houses with gardens known as Homewood and Drumfin respectively. To the south of Drumfin was a redundant chicken farm. To the rear, and east, of all three properties was a large field. The testatrix had lived in Homewood, while her younger sister, B, and B's husband lived in Drumfin as the testatrix's tenants. In 1992, the testator had made a will (the 1992 will) which provided, inter alia, that if she'd not, prior to her death, already gifted Drumfin to B, then she gave it to her absolutely. The will further provided that Homewood and the testator's personal chattels were gifted to B's sons, the claimant and the defendant, in equal shares. By a transfer dated 6 October 1995, the testatrix transferred the chicken farm to herself and the defendant as beneficial joint tenants by way of gift (the first gift). By a transfer dated 24 February 1997, the testatrix transferred to the defendant absolutely, by way of gift the field, and a major part of the garden of Drumfin (the second gift). On 5 March 1997 (the 1997 will), the testatrix made a new will, which was substantially different from the 1992 will. Under the terms of the 1997 will, the testatrix, inter alia, gave Drumfin to the defendant and Homewood to the claimant. On 24 June 1999, the testatrix executed a power of attorney in favour of the defendant. By two transfer deeds dated 26 April 2000, the testatrix transferred the chicken farm to the defendant absolutely by way of gift (the third gift), and what was left of Drumfin to the defendant absolutely by way of gift (the fourth gift). There was evidence that the defendant was using his executorship as a tool to enable him to release the development value of his own land, despite the fact that previous offers from property developers to buy the land from the testatatrix had been refused by her. Doubts subsequently arose concerning the mental capacity of the testatrix and on 2 June 2000, an application was made on the defendant's behalf to register the enduring power of attorney. The testatrix died in February 2001. The claimant subsequently commenced proceedings seeking to set aside the four gifts on the basis of presumed undue influence.The issues were whether the evidential presumption of undue influence had arisen and whether it had been rebutted in respect of any of the four gifts. Held - The claim would be allowed.The defendant had to produce evidence to counter the inference which otherwise would be drawn.In the instant case, the claimant had established that the evidential presumption of undue influence arose in respect of each of the first to fourth gifts. On the evidence, the defendant had failed to rebut that evidential presumption in respect of each of those gifts and accordingly, they would be set aside.
R (on the application of Compassion in World Farming Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWCA Civ 1009, (2004) Times, 9 August, [2004] All ER (D) 524 (Jul) Court: CA
The Welfare of Farmed Animals (England) Regulations 2000, SI 2000/1870 made under s 2 of the Agriculture (Miscellaneous Provisions) Act 1968 were made to incorporate Council Directive 98/58/EC, concerning the protection of animals kept for farming purposes, into domestic law. Regulation 3(2) required owners and keepers 'to take reasonable steps' to ensure compliance with the requirements of Sch 1. Regulation 13 of the 2000 Regulations made it an offence for a person to contravene the regulations. Paragraph 22 of Sch 1 to the 200 Regulations provided that animals should be fed a wholesome diet in sufficient quantity to 'promote a position state of well-being'. The claimant was concerned about the welfare of broiler chickens. It brought judicial review proceedings challenging, inter alia, the failure by the defendant to enforce section 22 by refusing to adopt a policy of prosecution in cases where fast growing broiler chickens were subjected to a restricted feeding regime for the first few weeks of life so that the birds experienced chronic hunger. The judge found against the claimant and it appealed against his decision.The claimant argued that the words 'to promote a positive state of well-being' in section 22 was a distinct requirement to be complied with separately from and in addition to the other parts of the paragraph. All the requirements of the regulations had to be complied with. It also contended that the judge was wrong to conclude that the needs of animals could be balanced against the commercial interests of intensive farming. It submitted that DEFRA should take steps to compel owners and keepers to use one or more slower growing genotypes and that not to do so was unlawful. Held - The appeal would be dismissed.If an owner or keeper fed broiler breeders so that their diet was wholesome and appropriate to their age and species and sufficient to maintain good health and satisfy nutritional needs there was no unlawful contravention by the owner or keeper of the last eight words of section 22 if, without more, the chickens were for part of their immature lives persistently hungry.The obligations in section 22 were not strict in law. The last eight words imposed no discrete strict obligation. The obligation wRegarding 'take all reasonable steps' and 'to promote'. They were predicated on reg 3(2) which required owners and keepers to 'take all reasonable steps'. Further, there was a degree of latitude in the verb 'to promote' in contrast with the preceding verbs 'to maintain' and 'to satisfy'. Promoting an animal's positive well-being required a balancing of factors which might conflict. Well-being was a composite state which could not be split into compartments each of which wRegarding be promoted separately. An over-fed chicken might be an unhealthy chicken, even if it wRegarding be supposed that, being over-fed, it was temporarily happy. Moreover, if broiler breeder were fed more, that might cause them unnecessary pain, suffering or injury, which would be a contravention of the Regulations. It followed that contravention of section 22 wasn't established. Legislation meant to see that owners and keepers of animals fed their animals properly could not be used as a vehicle for compelling DEFRA to require the owners and keepers to keep different animals. accordingly, there was no unlawfulness by DEFRA.
Kuhne & Heitz NV v Productschap voor Pluimvee en Eieren: C-453/00 [2004] ECR I-837, [2004] All ER (D) 35 (Jan) Court: ECJ
Kuhne exported quantities of poultry meat parts to non-member countries. In a declaration to the Dutch customs authorities Kuhne designated the goods as being under the classification of 'legs and other cuts of legs of other poultry' of the customs tariff. Based on that representation the customs authorities granted export refunds and paid the relevant sums. Further to checks made, the customs authorities reclassified the goods as 'other', as a result of which it demanded reimbursement of NLG 970. Kuhne unsuccessfully appealed to the Administrative Court for Trade and Industry. Further to the judgment Kuhne requested from the customs authorities reimbursement equivalent to the greater amount which it would have had received by way of refunds if the chicken legs exported had been classified properly. The customs authorities rejected the request. Kuhne brought an action for the sum claimed in the administrative court. Pursuant to art 234 EC, the administrative court stayed proceedings to refer a question on the interpretation of art 10 EC.It fell to be determined whether an administrative body was required to reopen a decision which had become final in order to ensure the full operation of community law. Held - The administrative body had been under an obligation to review an earlier decision in order to take account of art 10.The principle of cooperation that arose from art 10 imposed on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime where, (i) under national law, it had the power to reopen that decision; (ii) the administrative decision in question had become final as a result of a judgment of a national court ruling at final instance; (iii) that judgment was, in the light of a decision given by the court subsequent to it, based on a misinterpretation of community law which was adopted without a question being referred to the court for a preliminary ruling under art 234(3); and (iv) the person concerned complained to the administrative body immediately after becoming aware of that decision of the court.
Deriche v Ealing Hospital NHS Trust [2003] EWHC 3104 (QB), [2003] All ER (D) 373 (Dec) Court: QBD
In 1996, the claimant became pregnant. She attended her general practitioner suffering from chicken pox. He advised the claimant that there was a small risk to the foetus and discussed termination. She was referred to the obstetric registrar at the defendant hospital. Medical notes recorded that the claimant was seen by the registrar, who advised her that there was a small risk to the foetus and regarding the nature of that risk. She subsequently had an appointment with the consultant. The claimant alleged that the consultant had said that there was no risk. The consultant denied saying that there was no risk, and hisn'tes recorded that he'd considered that there was a very small risk. The consultant admitted that he'd not discussed the type or potential severity of problems which the baby might have. He took the view from the registrar's notes that the claimant had already been counselled regarding the type and severity of future problems, and that the purpose of the consultation wRegarding discuss the level of risk and the option of termination. On the advice of the consultant, a foetal anomaly scan was carried out which disclosed no abnormalities. When the claimant's son was born, he was very severely disabled and brain damaged.The claimant issued proceedings in negligence.The claimant argued, inter alia, that she was never advised that there was a risk of serious damage to her baby from the chicken pox, that the consultant had advised her that there was no risk, and that had she been properly advised that she would have had the foetus terminated. Held - The claim would be dismissed.A medical practitioner was entitled, in the exercise of his medical judgment, to decide that certain information would be medically damaging to his patient and, on those grounds, withhold it. Such a decision would be supported by the courts. However, where a topic did or should arise, it had to be dealt with properly. In the instant case, even a very small risk of potentially devastating abnormalities was likely to be regarded as highly material to a pregnant woman. Although on the evidence the consultant had warned the claimant regarding the level of risk, he'd failed to ensure that she understood the nature of the risks under discussion. In that regard, he'd been in breach of his duty of care. However, given that the claimant had been advised regarding the level of risk, and that the registrar had advised her regarding the type of risk, it could not be said that the claimant would have opted for a termination if she'd been fully advised by the consultant; not least because in effect the consultant would have been repeating advice which the claimant had already received from the registrar. In those circumstances, the claimant had failed to establish causation.
Dixy Fried chickens (Euro) Ltd v Dixy Fried chicken (Stratford) Ltd [2003] EWHC 2902 (Ch), [2003] All ER (D) 49 (Dec) Court: Ch D
The appellant (the proprietor) was in the business of selling fast food and was the proprietor of a mark, registered in respect of chicken and chicken products (class 29), which consisted of a line drawing of a cartoon-style smiling chicken's head and the words 'DIXY FRIED chicken'. The respondent (the applicant), which also sold fast food, alleged that it had traded under the mark for some time and had acquired a reputation in the market before any relevant reputation had been acquired by the proprietor.The applicant sought a declaration of invalidity in respect of the mark on the grounds, inter alia, that use of the registered mark would amount to passing off, pursuant to s 5(4)(a) of the Trade Marks Act 1994. The Registrar of Trade Marks (the registrar) declared the mark invalid under that section and the proprietor appealed. Held - The appeal would be allowed.The s 5(4)(a) ground had not been made out and, accordingly, the mark at issue was valid.When the validity of a mark was challenged under s 5(4)(a) of the Act, the attacker had to prove, on a balance of probabilities, that the use of the mark could have been prevented by an action for passing off. The registrar was entitled to receive sufficient evidence to raise at least a Prima facie case that the attacker's reputation extended to the goods comprised in the specification of goods for the registered mark. On the evidence, the applicant had failed to make out a Prima facie case of a likelihood of passing off.
R (on the application of Compassion in World Farming Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWHC 2850 (Admin), (2003) Times, 5 December, [2003] All ER (D) 410 (Nov) Court: Admin Ct
Council Directive (EC) 98/58 gave effect to the principles laid down in the European Convention for the Protection of Animals Kept for Farming Purposes. By an annex to that directive animals had to be fed a wholesome diet in sufficient quantity to maintain them in good health and satisfy their nutritional needs. The directive was implemented in England by the Welfare of Farmed Animals (England) Regulations 2000 pursuant to powers conferred by s 2 of the Agriculture (Miscellaneous Provisions) Act 1968. Regulation 3(2) placed the burden of complying with the requirements regarding feeding upon owners and keepers of animals who were obliged to take all reasonable steps to ensure that the conditions under which the animals were bred or kept complied, inter alia, with the feeding requirements laid down in the directive. That regulation differed from art 4 of the directive which stated that member states had to ensure that the conditions under which animals were bred of kept complied with the feeding requirements. Schedule 1 didn't follow the precise terms of the annex but by section 22 provided that animals should be fed a wholesome diet which was appropriate to their age and species and which was fed to them in sufficient quantity to maintain them in good health, to satisfy their nutritional needs and to promote a positive state of wellbeing. Regulation 13(1)(a) provided that a person who without lawful excuse, contravened or failed to comply with any provision of the regulations should be guilty of an offence. The claimant, which was a company whose objects included the promotion of the welfare of farm animals were concerned about the use of restricted feeding regimes for broiler breeders.The claimant sought judicial review challenging the domestic implementation of the directive.The claimant submitted that the defendant Secretary of State had failed properly to implement and enforce art 4 of the directive and had failed to comply with the annex to the directive by refusing to adopt a policy of prosecution in cases where broiler breeder chickens were subjected to restricted feeding practices, which it argued led to the birds experiencing chronic hunger. Held - The application would be dismissed. (1) The Secretary of State had properly implemented the directive.The objectives to be achieved were expressed in the directive in general and unquantifiable terms. accordingly, a member state had a discretion to choose the methods whereby the directive was fully secured, in fact and in law, and the adequacy of the transposition turned upon consideration of all the measures and not upon their precise language. The obligation imposed upon owners and breeders to ensure the conditions contained in the directive were complied with wasn't such a departure from the directive that the result required would not be achieved. If owners and breeders took reasonable steps to achieve the conditions it was likely they would be met. The inclusion of the words qualifying the duty as one requiring reasonable steps didn't amount to a derogation from the obligation imposed by the directive. The qualified duty was directed towards achieving compliance with the scheduled requirements and was within the margin of discretion allowed to a member state. Moreover, the whole system of implementation was backed by a criminal sanction. (2) A regime of restricted feeding wasn't in itself contrary to law.There was no paradigm of a healthy state of affairs for chickens. Further, a proper approach to the reach of the directive and the regulations involved an acceptance that intensive farming in connection with chickens wasn't in itself unlawful. On the evidence, the broiler breeders were fed a diet which satisfied the requirements of the annex because the diet was wholesome and appropriate to their age and species and sufficient to maintain good health and satisfy nutritional needs.
Sharp v HM Advocate 2003 SCCR 573 Court: HC of Justiciary (Sc)
The appellant was charged with causing death by dangerous driving. The charge narrated that he drove at speeds of up to 60 miles an hour, crossing over onto the opposite carriageway and into the path of an oncoming vehicle, before swerving back, hitting a kerb and losing control of the car. The car then mounted the pavement and hit three girls who were waiting for the school bus, two of whom were severely injured and the third of whom died. The Crown case was that the accused had deliberately being 'playing chicken' with the oncoming vehicle. He was convicted by the jury under deletion of the words 'of up to 60 miles an hour' and substitution therefor of 'well in excess of the speed limit'. The appellant, who was 18 years of age at the time of the offence, and had passed his driving test about four weeks earlier, was sentenced to seven years detention in a young offenders institution. He appealed against sentence on the grounds that it was excessive. The submissions for the appellant concentrated on the appellant's personal circumstances which were entirely favourable and showed that he'd never been in trouble before. It was also submitted that the nub of the matter was speed and that sentences such as seven years should be reserved for cases of sustained dangerous driving or where the offence was aggravated by intoxication. Held - The appeal would be refused. In a case of this sort the leading consideration in determining sentence was the gravity of the dangerous driving which the appellant committed. Causing death by dangerous driving would be severely punished by the courts. It was, of course, necessary to keep in mind that the maximum sentence was ten years detention or imprisonment. Each case thus required to be fitted into a scale which accommodated the whole range of seriousness of offences of causing death by dangerous driving. However a sentence of seven years detention wasn't only justifiable in cases aggravated by intoxication or by long sustained dangerous driving. While it wRegarding be borne in mind that the consequences of dangerous driving might sometimes be out of all proportion to the gravity of the bad driving, in this case the appalling consequences were not a freak result of momentary bad driving. Rather the appellant had deliberately courted the danger of losing control of his vehicle in a locus and at a time when he must have known that children would be waiting for a bus. In these circumstances, and notwithstanding the appellant's background and character, the sentence imposed wasn't excessive.
Marney v First Secretary of State [2003] EWHC 226 (Admin), [2003] All ER (D) 28 (Feb) Court: Admin Ct
The claimant applied for planning permission to site two residential caravans in the green belt, in an area of outstanding natural beauty. He claimed that he fell within the agricultural exception contained in PPG7, since he needed to be on site in order to care for his flock of chickens, which were stored in a converted trailer. In particular he stated that he needed to ensure the integrity of the water and electrical supplies, security and fire safety. The local planning authority refused his application and the Secretary of State's planning inspector dismissed his appeal. The claimant appealed against that decision under s 288 of the Town and Country Planning Act 1990. He contended, inter alia, that the inspector had wrongly concluded that he could lag and bury water pipes, without having regard to the fact that he wished to employ rotational techniques. Held - The application would be dismissed.On the facts, there was no reason why the system referred to by the inspector would cause any great obstacle. It was possible for certain of the water pipes to be buried, with flexible connections to the pipes as required. The rotational system didn't involve constant movement but instead implied that certain areas be left fallow. It followed that the inspector had been entitled to reach the view which he'd.
Smith (by her mother and next friend) v Secretary of State for Health [2002] EWHC 200 (QB), 67 BMLR 34, (2002) Times, 11 March, [2002] All ER (D) 196 (Feb) Court: QBD
The claimant, S, was born in 1979. She was a healthy child until she contracted chicken pox in May 1986. She became unwell on 20 May 1986, and it was evident by the following day that she'd chicken pox. Her mother gave her one aspirin tablet on 20 May and again on 21 May. On 23 May, S's condition worsened and she was admitted to hospital, where she was subsequently diagnosed with Reye's syndrome. On 11 June 1986, S's parents purchased the Daily Telegraph, which had a headline on the front page warning against the use of junior aspirin preparations as they could trigger Reye's syndrome. S brought an action against the Secretary of State for Health, contending that the Secretary of State was vicariously liable for the decisions of the committee on safety of medicines (CSM) and the Secretariat of the Medicines Division of the Department of Health (the Secretariat), and that they had been negligent in not issuing the public warning about the dangers of junior aspirin earlier than June 1986. The court ordered the trial of preliminary issues of negligence and causation. It was accepted for the purposes of the preliminary issues trial that the administration of aspirin to S had been a contributing causative factor in the development of her Reye's syndrome, and that her mother would not have administered aspirin to S had she become aware of the warnings before S became unwell on 20 May 1986. Held - On the evidence, S had not established any fault on the part of the Secretary of State, the Secretariat or the CSM. The decision not to issue the warning earlier had been essentially a discretionary or policy one, and had not been negligent. The Secretary of State, the Secretariat and the CSM had all acted throughout rationally and in good faith reaching decisions and implementing them carefully and expeditiously in the interests of the public.
HMP (London) Ltd, Re [2002] All ER (D) 62 (Jan) Court: Ch D J
The petitioner sold 448 cases of chicken drumsticks to the applicant company, and they were delivered on 20 September 2001. The applicant's solicitors subsequently informed the petitioner that 55 cases of the chicken supplied were not fit for human consumption and had been sent to G Ltd for disposal. The petitioner gave the applicant credit for those 55 cases, and told the applicant that they could return the rest of the cases if they so wished. By letter dated 26 October, written in general terms, the applicant's solicitors also asserted that even the remaining cases of chicken were not fit for human consumption and had also been sent to G Ltd for disposal. The petitioner's solicitors contacted G Ltd, who informed them that it had received no such delivery from the applicant. In order to obtain payment from the applicant, the petitioner issued a statutory demand, and subsequently presented a petition for a winding up petition against the applicant, claiming it was insolvent. The applicant made an application to restrain presentation of the petition on the grounds that it had a bona fide dispute on substantial grounds against the company. Held - The application would be dismissed.Where an application was made to restrain the presentation of a winding up petition, the applicant had to show that he'd a bona fide dispute on substantial grounds. In the instant case, the letter of 26 October from the applicant's solicitors to the petitioner wasn't sufficient to support the existence of such a dispute. accordingly, the application would be dismissed.
Sovereign Food Group Ltd v Cannings [2002] All ER (D) 55 (Jan) Court: EAT
The respondent was employed by the appellant as a poultry farm manager from March 1982 until August 1999. In July 1999, a significant number of chickens at the respondent's farm died as a result of heat exhaustion. Following a disciplinary hearing, the respondent was dismissed for gross wilful negligence. The respondent appealed against that decision but his dismissal was confirmed at the appeal hearing. He brought a complaint of unfair dismissal and the employment tribunal ruled in his favour. In reaching its decision, the tribunal made findings that, at both the disciplinary and appeal hearings, the respondent had not been allowed to account fully for his behaviour and that insufficient weight had been attached to the mitigation advanced. The tribunal ruled that the appellant's decision to dismiss the respondent was unreasonable in all the circumstances of the case. The appellant appealed to the Employment Appeal Tribunal against that decision on the grounds, inter alia, that the tribunal failed to apply the established test, which required that an employer who discharged an employee for misconduct entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. The appellant alleged, further, that in finding the sanction of immediate dismissal fair, the tribunal substituted its own view rather than the 'band of reasonable responses' test. Held - The appeal would be dismissed.The tribunal had concluded that, on the evidence, the appellant's reason for dismissing the respondent was gross negligence, rather than untruthfulness, and it was that which was the subject of the appellant's honest belief within the meaning of the established test. The approach taken by the tribunal in assessing the reasonableness of the sanction imposed by the appellant was consistent with established authority and accordingly there was no error of law in that regard.
Chalabi v Kentucky Fried chicken (Great Britain) Ltd [2001] All ER (D) 218 (Dec) Court: QBD
The defendants, KFC, operated a chain of fast food outlets. The claimants commenced operating a franchised KFC outlet in 1992. The outlet didn't prove successful. The claimants blamed KFC for that failure, and issued proceedings in 1997 for negligent misrepresentation and breach of warranty. In 2000, KFC applied for the claim to be struck out on the ground of delay, arguing that, inter alia, the case was fact intensive and would rely largely on oral evidence which, given the delay which had occurred was unlikely to be reliable. The master dismissed the application, finding that it was still possible to have a fair trial of the action. Held - The appeal would be dismissed.While the passage of time always affected a person's memory, the argument that oral evidence given after a considerable passage of time would be unreliable could be taken too far. Moreover, most memory loss was likely to occur in the months and weeks after the trial and a person's memory was unlikely to be significantly better a few years after an event as it would be many years after that event. While the instant case was fact intensive, it wasn't as dependent on oral evidence as KFC contended; many of the issues could be resolved by an examination of the documents in the case, and by drawing inferences from them. Those issues which could only be resolved with substantial input of oral evidence concerned (a) expert evidence of opinion based on assumed facts, and (b) might be unreliable not so much because of an inability to recall the events accurately but because of an unwillingness to recollect them honestly. Therefore, it could not be said that the master was plainly and obviously wrong in concluding that a fair trial of the action could take place.
Kloosterboer Rotterdam BV v Minister van Landbouw, Natuurbeheer en Visserij: C-317/99 [2001] ECR I-9863, [2001] All ER (D) 191 (Dec) Court: ECJ
K was a customs agent. It lodged three declaration on behalf of its principals concerning the import into the Netherlands of consignments of chicken breasts from Brazil. Commission regulation (EC) 1484/95 provided that additional import duty could, in certain circumstances, be implemented on imports of, inter alia, poultry-meat. That regulation provided by art 3(1) that at the request of the importer the additional duty could be established on the basis of the CIF import price but, by virtue of art 3(3), if such a representation wasn't made by the importer the duty would be established on the basis of a representative price. The relevant customs authority initially decided that no additional import duty should be paid, but later altered that decision and decided that the additional import duty should be paid. Since K had not asked for the duty to be established on the basis of the CIF price, it was calculated on the basis of the representative price. K objected to that decision, but its objections were rejected and it brought proceedings in the national court. K submitted, inter alia, that arts 3(1) and (3) of reg (EC) 1484/95 were invalid on the basis that they conflicted with art 5(3) of Council regulation (EEC) 2777/75 which stated that additional import duty should be determined on the basis of the CIF import price. The national court referred the following question to the European Court of Justice under art 234 of the EC Treaty: 'Is reg (EC) 1484/95 valid, in so far as it makes art 5(3) of reg (EEC) 2777/75 ... applicable in such a way that [determination on the basis of the CIF price] can be made only if the importer so requests ...' Held - Under art 5(4) of reg (EEC) 2777/75 the Commission was responsible for adopting detailed rules for the application of additional import duties. It was settled law that the Commission was authorised to adopt all the measures necessary or appropriate for the implementation of the basic legislation provided that they were not contrary to that legislation. It was clear from the wording of art 5(3) of reg (EEC) 2777/75 that only the CIF import price wRegarding serve as a basis for determining any additional duty. accordingly the Commission had acted contrary to the basic legislation and ultra vires in enacting arts 3(1) and (3) of reg (EC) 1484/95. Articles 3(1) and (3) of reg (EC) 1484/95 were therefore invalid.
Le Roi v Salisbury District Council [2001] All ER (D) 01 (Jul) Court: QBD
L owned land upon which he wished to build a barn. Prior to doing so, he read an information booklet, produced by the local planning authority, indicating the circumstances in which planning permission would be required. That booklet stated that permission would not be necessary where the land in question was agricultural land and the building didn't exceed certain dimensions. L subsequently attended the authority's planning office in November 1986, when he asked K, an officer of the authority, about the relevant regulations and restrictions applicable to his proposed barn. K asked whether L's land was more than one acre in area, and, when he informed her that it was, she told him that no planning permission would be required for the barn. That advice was based upon the 1977 General Permitted Development Order, which provided that permission wasn't required where the proposed building was needed for agricultural purposes and wRegarding be built on a unit of agricultural land of not less than one acre. 'Agricultural land' was defined as land used for the purposes of agriculture as a trade or business. At further meetings with the authority's officers, L again stated that his land was over one acre, and that he carried out agricultural activities there. He commenced building work in February 1988. The authority's planning officers conducted several site inspections in the course of that work. In December 1988 the authority issued an enforcement notice in respect of the building on the basis that: (i) it was being constructed as a two-storey house and not as a barn; (ii) L's land was less than one acre in area; and (iii) it wasn't agricultural land, as it was used only for a small-scale, non-commercial chicken-breeding operation. L's appeal against the notice failed. L didn't comply with the notice, but instead continued the building works. In 1991 he also began construction of a further building for use as a barn. The authority issued a further enforcement notice in respect of the second building, with which L again failed to comply. In 1992 L and his family moved into the first building. In May 1996 the authority brought enforcement proceedings, seeking an injunction against L in respect of both buildings. L contended, in relation to the first, that it would be unfair to require him to demolish it since: (i) the authority's booklet had indicated that he didn't need planning permission, and its officers had represented likewise; (ii) he'd, to his detriment, carried out expensive building work in reliance on those representations, the officers having acquiesced in those works; and (iii) the authority was accordingly estopped from taking enforcement action in respect of the works. The judge issued an injunction requiring demolition of the second building, but delaying the requirement to demolish the first until after a final determination of the issues raised in respect of it. L accordingly applied to vary the injunction to exclude the first building, relying on the estoppel point and upon his right to property and right to family life under arts 1 and 8 of the European Convention on Human Rights. By that time, L and his family were living in a flat above L's business premises while more work was carried out to the building. The authority opposed that application, contending that L's estoppel argument had already been dealt with in earlier proceedings. Shortly before the hearing of L's application, the authority also applied to commit him for contempt of court for his failure to comply with planning control.Held (1) Although L had previously put forward arguments based upon the unfairness, in the circumstances, of requiring him to demolish, he had not specifically relied upon the estoppel argument, and was free to argue it on the present application. Nevertheless, that argument failed. The booklet read by L had clearly been intended as a short guide for the layman, to point him in the right direction, and not as a comprehensive review of the planning regulations. If there were any doubt regarding whether permission was needed for a development, a sensible developer would check further. In relation to the alleged representations of the authority's officers, it was established that a local authority could, in certain circumstances, be bound by erroneous representations made by its officers. However, the general rule to the contrary, based upon the principle that estoppel arguments should not be allowed to stop a public authority from doing its duty, only admitted of very limited exceptions. The instant case wasn't one involving minor alterations to a development in respect of which permission had already been granted. L had no reason to believe that the officers he spoke to had any delegated authority to permit his development. Their function was simply to give advice, and they would have been acting outside the scope of their powers had they gone further. In any event, any representations made by officers of the authority in relation to the building of a barn had doubtless been made on the basis of a false belief, engendered and encouraged by L, that the land was agricultural land of over one acre. L had always been well aware that he wasn't permitted to use the building as a dwelling-house. (2) The injunction didn't infringe L's Convention rights, since: (i) L had maintained throughout the construction works that the first building wasn't intended as a home; (ii) he'd known that that use wasn't permitted; (iii) he'd alternative accommodation; and (iv) any financial difficulties he might suffer as a result of demolition were, in part, due to money spent on building works that L had known he should not be carrying out. (3) A committal order was appropriate in view of L's flagrant breaches of planning control over a long period. However, in view of the short notice given by the authority in making its application, the order would be suspended for 16 weeks to give L time to comply with planning requirements.
Grampian Country chickens (Rearing) Ltd v Paterson [2001] All ER (D) 373 (May) Court: EAT
The complainant, P, was employed by the appellant company. His employment was terminated on 2 December 1999. On 13 March 2000, P presented an IT1 stating that the company had refused to pay him for hours that he was owed and that there was an unauthorised deduction from his wages within s 13(3) of the Employment Rights Act 1996. On 4 April 2000, the company claimed that the IT1 was out of time and therefore the employment tribunal was without jurisdiction. P's solicitors supplied particulars to the tribunal which indicated that P didn't know of the deduction until 17 December when they received P's final payment of wages, therefore as he could not complain of a deduction until he knew about it, there was no question of the IT1 being out of date. The tribunal held as a fact that the date of payment of the wages from which the deduction was made was 17 December so that there was jurisdiction to entertain the application. The company appealed. Held - The appeal would be dismissed. When an employment tribunal was considering a question of jurisdiction as a preliminary issue, it was appropriate to see how the complaint was framed, although at that stage, the tribunal didn't necessarily have to go into all facts. If a fact essential to jurisdiction was clearly disproved even at the preliminary stage that would, of course, suffice to reject the case for want of jurisdiction, but it wasn't to be expected that the whole of the case and all surrounding circumstances were to be fought over when only a preliminary issue regarding jurisdiction was in play. Moreover, tribunals were less inhibited than ordinary civil courts in that there was a freedom in the entitlement of a tribunal to look at the way a complainant's case was framed. In the instant case, there was no flaw in the approach the tribunal had taken.
R (on the application of Wickham Laboratories (SPF Farms) Ltd) v Ministry of Agriculture Fisheries and Food [2001] EWCA Civ 586, [2001] All ER (D) 09 (Apr) Court: CA
The applicant's business included the production and supply of eggs from specific pathogen free (SPF) flocks of chickens to manufacturers of avian vaccines. The applicant was the only producer of SPF eggs to use the 'rolling flock' system, under which the flock was initially constituted by introducing SPF eggs from another SPF flock to a fully barriered house, incubating the eggs and growing the chicks to maturity, and then closing the flock. Thereafter hens were replaced as they died or were removed by hatching eggs produced by the flock within the same isolated airspace. The flock would thus perpetuate itself within its own closed environment. When the applicant was building up a flock it was its practice to blood test all chicks between the ages of 6 and 20 weeks, the latter being the 'point of lay' or age at about which hens begin to lay. Once the flock was established, however, it tested 5% of the birds every month. The licensing of avian live virus vaccines was regulated by the Marketing Authorisations for Veterinary Medicinal Products Regulations 1994 which implemented parts of, inter alia, Council Directives 81/851 (EEC) and 81/852 (EEC) relating to the testing of veterinary medicinal products. Directive 81/852 provided that for the purposes of specified provisions of Directive 81/851, the monographs of the European Pharmacopoeia (EP) should be applicable. The Veterinary Medicines Directorate (VMD), acting on behalf of MAAF, maintained that section 5.2.2 of the EP required the applicant to carry out 100% testing at point of lay of all hens in order to maintain the SPF status of its flocks, and so informed the applicant in a letter of 26 February 1998. The applicant sought judicial review of the decision of the VMD, submitting that the requirement for 100% testing at point of lay only applied where birds were hatched from eggs introduced into the closed flock from another SPF flock on the same site, and not to the system operated by the applicant. The judge dismissed the application, holding that the wording of section 5.2.2 of the EP was clear and unambiguous, and required 100% testing at point of lay. The applicant appealed. HELD:The appeal would be dismissed.On the true construction of section 5.2.2 of the EP, replacement birds produced under the applicant's system clearly constituted a new generation in an established flock, and were thus subject to the same standards of testing as all other birds in a rolling flock system, ie 100% testing at point of lay.
R v Cruickshank [2001] All ER (D) 111 (Jan) Court: CA
The defendant, who was profoundly deaf, had placed pins, nails and needles in the food products of a supermarket. The matter came to light because of customer complaints which had prompted a police investigation using covert cameras. A police officer saw the defendant pick up a packet of scones and make a pushing movement with his right hand, before replacing the packet of scones on the shelf and walking away. The police officer had examined the scones which had a pin protruding from it. Additionally, the contamination included needles in a sweet and chicken. Customers reported suffering minor injuries; the most serious was a pierced tongue. The defendant was arrested and three pins were found in his possession. He pleaded guilty to two counts of contamination of goods contrary to s 38 of the Public Order Act 1986 and a medical report was prepared for sentencing. The psychiatrist had not recommended a medical disposal and in his opinion the contamination was a response to the defendant's difficulties in communicating his distress and difficulty in relation to anxieties about his future and elderly mother's future. The defendant was a man of good character and had expressed remorse. He was sentenced to three years' imprisonment on each count to run concurrently. The defendant appealed against sentence on the ground that it was manifestly excessive in the circumstances of the case. HELD:The appeal would be dismissed.A serious view should be taken of deliberate and persistent acts to contaminate food, in the manner used in the instant case, as the potential for serious injury was obvious. Despite the considerable personal mitigation of the defendant's deafness and consequent isolation and anxiety, the seriousness of these offences should be marked. In those circumstances the sentence of three years' imprisonment had not been manifestly excessive and would be upheld.
Sparrow v Sovereign chicken Ltd [1994] CA Transcript 750 Court: CA
The ratepayer company owned and occupied two hereditaments in the same village for the purposes of its poultry business. The first hereditament comprised a provender mill used for the production of pelleted feed for turkeys and chickens housed in broiler houses on 67 farms owned and occupied by the company and situated between a quarter of a mile and 120 miles in distance from the mill. The second hereditament comprised a separate poultry processing factory used for the slaughter and processing of turkeys and chickens from the company's broiler houses and ancillary buildings. The company made proposals to delete both hereditaments from the valuation list for rating on the ground that the buildings on the hereditaments were "agricultural buildings" as defined by s 2(1)(b) and (3)(a) of the Rating Act 1971 and were therefore exempted from rating by s 26(1) of the General Rate Act 1967 as applied to "agricultural buildings" by s 1(1) of the 1971 Act inasmuch as the provender mill and the poultry processing factory were buildings "occupied together with" buildings (the broiler houses) used for the keeping or breeding of livestock, within s 2(1)(b), since they were both occupied by the same person, they were both so occupied during the same period and they both took part in one continuous process of rearing, slaughtering and preparing poultry for sale so that a test of functional unity was satisfied. It was accepted that the broiler houses were agricultural buildings within s 2(1)(b) of the 1971 Act. The local valuation court agreed to the proposals and deleted both entries from the list. The valuation officer and the council appealed to the Lands Tribunal, which dismissed the appeals, holding that the geographical test, ie the distance between the hereditments and the farms, wasn't a relevant consideration and that the provender mill and the factory were "occupied together with" the broiler houses. The council appealed to the Court of Appeal, which allowed the appeal, holding that the Lands Tribunal had applied the wrong test in determining whether the provender mill factory were occupied together with the broiler houses on the farms, and remitted the case to the tribunal. The company appealed to the House of Lords. Held, for a building to be "occupied together with" another for the purposes of the 1967 Act the buildings had to be in the same occupation and the activities carried on in both had to be jointly controlled or managed. Moreover, the two buildings or, as the case might be, the buildings and agricultural land had to be so occupied and the activities so controlled or managed at the same time, so regarding form in a real sense a single agricultural unit. Although there was no conclusive geographical test for the purpose of deciding whether buildings were occupied together for rating purposes, the distance between them was a relevant factor, since contiguity or propinquity might go far to show that they were so occupied whereas separation might indicate that they were not and the greater the distance the less likely they were to be one agricultural unit. On the facts it was impossible to say that each farm or broiler house was occupied together with all the other broiler houses as one unit or that the factory was occupied as one unit together with all of the farms since the farms were separate and distinct agricultural units. The appeal would accordingly be dismissed.
Faccenda chicken v Customs and Excise Comrs [1992] VATTR 395 Court: VAT Trib Judgment Date: circa 1992 FLC Management Ltd v Ganton House Investments Ltd [1991] 1 EGLR 132, [1991] 14 EG 107 Court: CA
An employee who alleged that she'd been unfairly dismissed presented an originating application to an industrial tribunal. Her Citizens Advice Bureau ('CAB') representative subsequently signed a settlement in the appropriate COT3 form under the terms of which the employers agreed to pay an ex gratia sum in full and final settlement of all claims arising out of the employee's employment. When the employee issued another originating application claiming a redundancy payment, the employers relied on the terms of the settlement as disposing of any claim. The employee contended that the settlement had been entered into without her agreement. The tribunal decided in the employers' favour. On appeal: Held where a CAB adviser named as representative by a party to proceedings held himself out as having authority to negotiate and reach a settlement on behalf of a client, the other party to the proceedings was entitled in the absence of any notice to the contrary to assume that that adviser did in fact have such authority. The submission that the CAB adviser had exceeded his authority by agreeing a provision which prevented any further claim to an industrial tribunal or any other court could not be accepted. Ostensible authority in cases involving claims arising out of statutory employment rights was wider than the strict common law position and included all actual and potential issues which were known to the parties at the time. The appeal would be dismissed.
Berkeley Administration Inc v McClelland [1990] FSR 505 Court: QBD
Taxpayer sold about 75 per cent of its packs of minced chicken, unsuitable for human consumption, to owners of working dogs; not labelled as pet food and no value added tax charged on it; question whether, nevertheless, it was 'pet foods, canned, packaged or prepared' within Value Added Tax Act 1983 Sch 5 Group 1 item 6, subject to value added tax: Held substance such as mince, held together in packs, was properly 'packaged'; as it was minced, it was 'prepared'; it wasn't held out for sale as, and wasn't pet food; circumstances surrounding sale and intention of seller (as indicated by way he held it out for sale) determined whether an item was pet food; taxpayer held out chicken as animal foodstuff for consumption by all dogs, particularly working dogs; accordingly, not pet food within Sch 5 Group 1 item 6; zero rated supply.
Kent County Council v Peter Thompson Poultry (1982) Ltd (1989) 88 LGR 262, 153 JP 525, [1989] Crim LR 651 Court: DC
A county council alleged that a poultry company had traded within the Community frozen chickens with excess water content contrary to the Poultry Meat (Water Content) Regulations 1984 SI 1984/1145. The justices had dismissed the information as being laid out of time because the information wasn't laid within two months of the council procuring the sample as required by the Food Act 1984 s 95. The council contended that the time limit didn't apply because the regulations formed a self-contained code and, except where there was express provision, the Act wasn't relevant to the exercise of the regulations: Held the purpose of the regulations wRegarding bring into force in English law a European Community Regulation. The regulations had to be read in conjunction with the 1984 Act and all the provisions relevant to the Act related to the proceedings except where expressly excluded. accordingly, s 95 did apply and the information was laid out of time.
Lindholst & Co A/S v Fowler [1988] BCLC 166, 4 BCC 776 Court: CA J
The plaintiffs contracted to supply equipment to the Corby chicken Co Ltd (the company). The contract, which provided for the payment in instalments by bills of exchange, was prepared by the plaintiffs referring to the Corby chicken Co without adding 'Ltd'. The plaintiffs forwarded bills of exchange addressed to Corby chicken Co, again omitting 'Ltd'. The defendant signed the bills of exchange by way of acceptance on behalf of the company. The plaintiffs sued the defendant on the bills of exchange, alleging that the bills of exchange were meant to be accepted on behalf of Corby chicken Co Ltd and that the defendant was liable under s 349(4) of the Companies Act 1985 on the grounds that the name of the company wasn't accurately described on the bills of exchange. Held, defendant liable. As the defendant accepted that the contract was with Corby chicken Co Ltd and as the bills of exchange had been accepted in terms which didn't accurately state the name of the company and which were not dictated by the plaintiffs so that they would be estopped by what they had prescribed, the defendant was liable under s 349(4) of the 1985 Act.
Sovereign chicken Ltd v Stebbing (Valuation Officer) [1988] RVR 223 Court: Land Trib
Employees of a company terminated their contracts of employment and set up a competing company. They used information gained in their employment, concerning customers and sales, to further their business. The employer unsuccessfully claimed damages for alleged wrongful use of confidential sales information by the employees. On appeal, held, in the absence of an express term in the employee's contract of employment the employee's obligations were governed by implied terms. Whilst the employee was still in his employment, an implied term imposed a duty of fidelity on him which varied according to the nature of the contract; to copy a list of customers for use after his employment ended, for example, would be a breach of that duty. After the employee terminated his employment an implied term imposed an obligation not to use or disclose information of a sufficiently high degree of confidentiality to amount to a trade secret such as secret manufacturing processes or designs. The obligation, however, didn't extend to information 'confidential' only in that any unauthorised disclosure would be a clear breach of a duty of fidelity. In deciding whether the implied term applied so regarding prevent the use or disclosure of information after employment had ceased, all the circumstances had to be considered. These included, (i) the nature of the employment; an employment where confidential matter was continually dealt with would impose a high duty of confidentiality, (ii) the nature of the information; protection would be given if the information could properly be passed as a trade secret, (iii) whether the employee was told of the confidentiality of the information, and (iv) whether the information could be easily isolated from information which the employee could use or disclose freely. In the present case, neither the sales information nor the information about prices, looked at in isolation, fell within the class of confidential information which the employees were bound not to use or disclose after the determination of their employment under an implied term of their contracts. The appeal would, therefore, be dismissed.
Prior (Valuation Officer) v Sovereign chicken Ltd [1984] 2 All ER 289, [1984] 1 WLR 921, 83 LGR 14, [1984] RA 73, 128 Sol Jo 432, 270 Estates Gazette 221 Court: CA
A company engaged in breeding and processing poultry for domestic consumption claimed rating relief in respect of one of its processing factories. The factory, not being a building surrounded by or contiguous to agricultural land of an area of not less than five acres, didn't qualify for relief under the Rating Act 1971 s 2. The company, however, claimed that the factory qualified for relief because it was a building used in connection with agricultural operations which was occupied by ''persons'' who were ''occupiers'' of the land within the General Rate Act 1967 s 26(4)(b)(i) and the Rating Act 1971 s 4(2)(b)(ii). Held, the purpose of relevant sections wRegarding extend rating relief to farming co-operatives. The terms ''occupiers'' and ''persons'' referred to a plurality of persons; any other construction would produce the anomalous result that there could be relief under s 4 for a building which was disqualified for relief under s 2 because of the five acre condition. accordingly the company, being a single occupier, wasn't entitled to relief in respect of the factory.
Faccenda chicken Ltd v Fowler [1985] 1 All ER 724, [1985] FSR 105, [1984] ICR 589, [1984] IRLR 61 Court: Ch D
The plaintiff company was engaged in the business of marketing fresh chickens. In 1973 it employed F as its sales manager and at his suggestion adopted a method of selling fresh chickens from refrigerated vans which travelled through particular routes within a defined area. Each van salesman acquired sales information regarding the customers' names and addresses, the general limits of the routes, the quantity and quality of goods sold and the prices charged. In November 1980 F left the plaintiff's employment and subsequently set up his own business of selling fresh chickens from refrigerated vans. He conducted his business in the same area as the plaintiff, his vans operated on the same routes as the plaintiff and served the same type of customers. Five of the plaintiff's van salesmen and three other employees left the plaintiff's employment and joined F's business. None of the former employees was subject to an express agreement restricting his or her services after leaving the plaintiff's employment. The plaintiff brought an action against F and the other former employees claiming (i) damages for breach of their contracts of employment by using the plaintiff's sales information to the disadvantage or detriment of the plaintiff and (ii) damages for conspiracy to injure the plaintiff's goodwill and connection by abuse of confidential information. Held - The action would be dismissed for the following reasons-- (1) Confidential information of an employer's business acquired by an employee in the course of his service, which necessarily became part of the employee's skill and knowledge applied in the course of the employer's business and which wasn't subject to any relevant express agreement, could be used by the employee after the lawful termination of his employment for his own benefit in competition with his former employer either where he traded as a principal making personal use of such information or where, having entered new employment, he disclosed such information to further the business of his new employer. It followed that in the absence of an express agreement restricting the use of sales information, the former employees were not in breach of their contracts by using such information to further F's business. (2) A combination of persons whose acts resulted in damage to the plaintiff was an actionable conspiracy if (a) the acts done in pursuance of the combination would have been actionable if done by one person alone and/or (b) the sole or predominant purpose of the combination wRegarding injure the plaintiff. On the facts, the wrongful act alleged was the abuse of confidential information and, since that allegation had not been established, there were no grounds for holding that there had been a conspiracy by F and the other employees to injure the goodwill of the plaintiff. accordingly, the claim for damages for conspiracy failed.
Prior (Valuation Officer) v Golden Produce Ltd [1982] RA 299, 264 Estates Gazette 835 Court: Land Trib
chickens frozen and packed by P Ltd, a firm enjoying a high reputation as frozen poultry suppliers and the exclusive owners of a particular brand name, were sold to the respondents in a paper transaction. The brand name was entered in the invoice in respect of the sale. The respondents sold the chickens to E Ltd who in turn sold them to the appellants. One of the chickens was unfit for human consumption. The appellants laid an information against E Ltd alleging that they had sold food intended for, but unfit for, human consumption, contrary to s 8(1) of the Food and Drugs Act 1955. E Ltd laid a similar information against the respondents, who relied on the defence under s 115(1) of the 1955 Act (repealed) that they had purchased and sold the chicken under a written warranty that it could be sold under the particular brand name without contravening the 1955 Act (repealed) because the entry in the invoice of the brand name amounted to such a warranty by virtue of s 115(5). The justices upheld the respondents' defence and acquitted them. The appellants appealed, contending that on the true construction of s 115(5) the mere entry in an invoice of the name or description of an article didn't amount to a written warranty that the article was fit for human consumption, but was only a warranty regarding the name or description itself. Held, the entry in the invoice of the brand name amounted to a written warranty, for the purpose of s 115(1) of the 1955 Act (repealed) that the chicken was fit for human consumption. The restrictive interpretation of s 115 put forward by the appellants was contrary to the express language of s 115, wasn't justified in the construction of a section which provided a defence to criminal offences many of which were absolute offences, and wasn't in accord with the contemporary marketing practice where, frequently, the trade name of food was the best guarantee of its quality and was relied on by those who distributed the food. accordingly, the appeal would be dismissed.
Canadian Imperial Bank of Commerce v Vopni and chicken Delight of Canada Ltd (1978) 86 DLR (3d) 383, [1978] 4 WWR 76 Court: Man QBD
Appellants took over a shop in which were sold, inter alia, greengrocery, meat and poultry. They decided to cater primarily for the Moslem community, and accordingly began to keep live chickens on the premises and to slaughter them in accordance with Moslem ritual. The local planning authority served on them an enforcement notice requiring them to discontinue that use. The Secretary of State dismissed an appeal by appellants against the notice, and they appealed, contending that keeping and slaughtering chickens was ordinarily incidental to the keeping of a food shop serving the Moslem community and Therefore, having regard to article 3(1) of Town & Country Planning (Use Classes) Order 1963 (replaced) didn't involve development: Held dismissing the appeal, in deciding whether a use was ordinarily incidental to the keeping and running of a retail shop one had to inquire whether it was ordinarily incidental to retail trade generally; in doing so one had not to consider the requirements of particular localities, areas and customers but to look at the shop as an activity as a whole; appellants' use of their premises wasn't ordinarily incidental to the keeping and running of a retail shop and the Secretary of State had rightly dismissed their appeal.
Eastwood (W & JB) Ltd v Herrod (Valuation Officer) [1971] AC 160, [1970] 1 All ER 774, [1970] 2 WLR 775, 68 LGR 557, [1970] RA 63, 15 RRC 326, 134 JP 307, 114 Sol Jo 224 Court: HL
The ratepayers owned and occupied approximately 1,150 acres of land including 20 layer houses, a hatchery, a poultry food compounding mill, 72 broiler houses, a poultry packing station and ancillary premises for use in a poultry farming enterprise. The enterprise was largely carried on within the buildings. Day-old chicks were bought and placed in layer houses. When fertile eggs were produced they were sent to the hatchery and the products of the hatchery were sent to the broiler houses. They stayed for ten weeks in the broiler houses before being sent to the packing station to be killed and dressed. Neither laying hens nor the broiler chickens ever went out of the buildings. The cockerels, however (which were bought at a day old with the day-old hens), were put out on the land for 15 weeks when eight weeks old; their lifespan was 64 weeks. The cockerels were put out onto an area of 20 acres which was changed every three months (80 acres being thus used in one year). The rest of the land was used for growing barley which was used as part of the feeding stuffs supplied to the birds (representing 13 per cent of the total annual, requirement of grain but only 4 per cent of the total feeding-stuffs required). The rest of the feeding-stuffs required were purchased from extraneous sources and all the feeding-stuffs were processed at the ratepayers' mill. The litter from the layer and broiler hosues provided most of the manurial requirements of the land. On the question whether the ratepayers' buildings should be derated as agricultural buildings: Held the buildings were not agricultural buildings, because (1) on true construction of the definition of agricultural buildings in Rating and Valuation (Apportionment) Act 1928 (c 44) s 2 (2) it must be shown that the use to which buildings were put was ancillary to the agricultural operations on the land; (2) the test of whether or not the operations performed in the buildings and on the land amounted to a combined agricultural operation wasn't the true test to be applied to determine whether buildings were used solely in connection with agricultural operations on land; (3) it could not be said that the buildings fell within the expression 'used solely in connection with agricultural operations thereon' in section 2 (2) where the agricultural operations carried out on the land were the growing and harvesting of barley and the free-range running of cockerels. Per Lord Reid: (a) the sole object of producing a crop on agricultural land is to market it in one form or another, and anything done in the farm buildings, including storage and treatment, must be held to be done in connection with the agricultural operations on the land provided that regard is had to ordinary and reasonable practice; (b) Generally, breeding and fattening all kinds of livestock are agricultural operations for they are closely connected with the use of land. But it doesn't follow that breeding and fattening must always be regarded as agricultural operations no matter where or how they are conducted. Per Lord Guest: if the poultry in the houses had been entirely supported by food grown on the farm a strong case could be made for the argument that the buildings were used solely in connection with the agricultural operations on the land. Per Viscount Dilhorne: The expression 'occupied together with agricultural land' in the definition of 'Agricultural buildings' in section 2 (2) may connote more than common ownership.
Gilmore (Valuation Officer) v Baker-Carr [1962] 3 All ER 230, [1962] 1 WLR 1165, 60 LGR 443, [1962] RA 379, 9 RRC 240, 126 JP 476, 106 Sol Jo 569, [1962] RVR 486 Court: CA
Broiler houses consisting of large sheds, one with an earth floor, situated in some cases on their own small areas of land each exceeding a quarter of an acre, in other cases on farms, were used for the rearing of chickens, which were kept inside them in artificial light from arrival as day old chicks until removal for killing ten or twelve weeks later. The adjoining land provided some measure of isolation, but was used otherwise only for sterilisation of equipment and utensils after each batch of chickens had been taken from the broiler houses once or twice a year pending its removal elsewhere, or in some cases its spreading on the land as manure: Held the broiler houses were not exempt from rates as agricultural buildings as defined in Rating and Valuation (Apportionment) Act 1928 (c 44) s 2 (2), for the following reasons: (1) the broiler houses on their own land were not occupied together with agricultural land (ie, for present purposes, land exceeding one quarter of an acre used for poultry farming), because (a) the small areas of land near the broiler houses were not agricultural land within section 2 (2), although they were used in connection with the poultry farming, for they were ancillary to the building instead of the reverse, and were not used for the purposes of poultry farming, ie, devoted to the raising of poultry, as isolation or sterilisation of equipment and dumping of litter didn't constitute poultry farming, and (b) the earth floor of the one broiler house was part of the building and therefore not 'agricultural land', an expression used in contradistinction to and mutually exclusive of agricultural buildings, and the broiler house could not be occupied together with part of itself; (2) the broiler houses were also not agricultural buildings within section 2 (2) because they were also not used solely in connection with agricultural operations on the land, isolation not being an operation and the sterilising of equipment and storing of litter not being agricultural operations, or (per Pearson LJ) being de minimis, and (per Person LJ) use as manure not being a purpose connected with poultry farming; (3) the broiler houses on farms were not agricultural buildings within section 2 (2) by reason of occupation with the farms because, though occupied together with agricultural land, they were not used solely in connection with agricultural operations thereon, as the farming operations on the land had no connection with the poultry farming operations in the broiler houses and the protective shield provided by the farm land wasn't an agricultural operation.
Towers & Co Ltd v Gray [1961] 2 QB 351, [1961] 2 All ER 68, [1961] 2 WLR 553, 59 LGR 271, 125 JP 391, 105 Sol Jo 235 Court: DC
Appellant company carried on the business of wholesale butchers and from time to time deposited perishable goods in the adjacent cold store of a cold storage company on terms that the cold storage company had a lien for its charges but appellant company could remove them within certain hours on production of a voucher. A producer supplied appellant company with frozen chickens wrapped in bags and packed into cartons, the net weight of each chicken being marked inside the bags. The producer had marked incorrect weights, and these amounted to a false trade description. On delivery to appellant company the chickens were signed for and directed to the cold store where they were deposited. Appellant company was convicted by justices of having in its possession for the purpose of trade prepacked frozen chickens to which a false trade description was applied contrary to Merchandise Marks Act 1887 (c 28) s 2(2) (repealed), as substituted by Merchandise Marks Act 1953 (c 48) s 4 (repealed). Appellant company appealed on the ground that the chickens were not in its possession while deposited in the cold store: Held the meaning of the word 'possession' depended on the context in which it was used and both in the commercial world and in the criminal law the word could cover cases where a man's goods were in the custody of a bailee from whom he'd a right to recover the goods on demand; in the present case the goods, while deposited in the cold store, were in the possession of appellant company for the purposes of Merchandise Marks Act 1887 (c 28) s 2(2) (repealed), as substituted, and appellant company had been rightly convicted.
Nichrotherm Electrical Co Ltd, Cox, Drew and Francis v J R Percy and G A Harvey & Co (London) Ltd [1956] RPC 272 Court: Ch D
Plaintiffs C and D were heating engineers who carried on business through plaintiff company, a large part of such business relating to an below-red lamp used in apparatus for rearing chickens. They conceived the idea that like means might be used for rearing young pigs, and this idea they discussed with defendant P who was a farmer. Later they designed an apparatus for artificial pig rearing, comprising heating means and feeding means, and applied for a patent through plaintiff company's patent agents. At P's request he was appointed selling agent for the apparatus. Later P set up a claim to be the inventor of the apparatus and himself applied for a patent. At the time of the trial neither of the applications had been accepted by the patent Office. Plaintiff F was instructed to make production drawings of the apparatus for plaintiff company, and these drawings were deposited with R, a manager of defendant company, GAH & Co (London) Ltd, who died before the trial, with a view to such company manufacturing the apparatus for plaintiff company. R, however, handed the drawings, or some of them, to P who by means of such drawings, or copies thereof, had a considerable number of the apparatus manufactured which he sold on his own behalf, though at a loss: Held (1) C and D, and not P, had invented the apparatus; (2) there was no joint venture between plaintiffs and defendant P; (3) the drawings were made solely for the use of plaintiff company and not for such company and P jointly; (4) P was liable to plaintiffs for breach of confidence and infringement of copyright; (5) although no moral turpitude was attributable to R or defendant company, such company was liable for a breach of confidence, and also for infringement of copyright, but that as such infringement was innocent the company wasn't liable in damages under this head; (6) a claim against P for slander of title failed because there was no proof of malice. A counterclaim by defendant P, for a declaration that he was the inventor of the apparatus was dismissed. The plaintiffs were granted inquiries regarding damages, and were given leave to apply for injunctions against defendants. Defendants were ordered to pay the costs of the action.
Goodway v Becher [1951] 2 All ER 349, 115 JP 435, 95 Sol Jo 239 Court: DC
Appellant, who was the owner of a poultry farm, saw a dog belonging to respondent's stepson chasing his chickens. Although appellant had a gun at the time he didn't fire at the dog, but he warned respondent that, if again he found the dog worrying the chickens, he would shoot it. On the next day appellant saw the dog among his chickens and killed it. On his being summoned for unlawfully and maliciously killing the dog, justices found that, while appellant acted under considerable provocation, 'he didn't exhaust every practicable means of stopping the dog from attacking the fowls,' and they convicted him: Held the true test to be applied was whether appellant had acted reasonably in what he did; in the circumstances, he'd so acted; and, therefore, the conviction should be quashed.
Vasna, The (1943) 170 LT 390, 77 Ll L Rep 74 Court: P, D and Admlty
The steamship MT, bound from Liverpool to Newry, collided with the hospital ship V, which was steaming up the Irish Sea from the Bristol Channel towards the Atlantic, at about 10.12 pm (BST) on 15 March 1942, in hazy weather, from ten to eighteen miles to the southward of the chicken Rock. In consequence of the collision the MT sank and all of the eight hands on board her were drowned. The approximate place of collision showed that the MT was on her normal course of about 285° true across the Irish Sea to Carlingford Lough; the V's course was 353° true, so that the masthead and red lights of the MT must have been open to the V at all material times. Those on board the V, however, at first only saw the masthead light of the MT distant about half a mile, and bearing about three points on starboard bow; this was about two minutes before the collision. Shortly afterwards they observed the MT's red light and then noticed that the bearing of her masthead light was narrowing on the V's starboard bow. The V admitted that before she took engine action to avoid the collision, she was doing thirteen knots and it was clear from the bearings of MT's lights as observed before the impact that, in order to produce a collision at all, the speed of the MT must have been much less than that of the V. One or two minutes before the collision, the wheel of the V was put hard-a-port and her port engine full astern: Held (1) the V wRegarding blame (a) for proceeding at excessive speed in all the circumstances; (b) for not taking earlier action to keep out of the way of the MT; (c) for hard-a-porting instead of hard-a-starboarding; and (d) for not taking her way off as soon as she saw the MT's red light by going full astern on both her engines; (2) In respect of the MT, her duty wRegarding keep her course and speed. There was a total absence of any evidence regarding what was happening on board her, and, in order that any blame might attach to the MT also, it was for the V to make out a case of negligence against her. This the V had failed to do.
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