Wednesday, 17 August 2011

Jayashankar v Lloyds TSB plc [2011] EW Misc 9 (CC): sticking the head back on

The problem with execution is that once it’s done it cannot be undone.  This applies to property as well as people.  Once a bank has re-possessed your house, it’s difficult to put you back.  After all, the bank might have sold it.
This is the problem at the root of this case.  Mr Jayashankar faced an application for possession from Lloyds when he went seriously into the red on his mortgage.  He tried to have it set aside but failed; Lloyds therefore took possession.  Later that day.  They don’t hang about.
21 days later he appealed the decision.  Pointless?  Now he was out?  Or would the appeal put him back?  A real quandary for Lloyds, who would not be able to do anything with re-possessed properties if it feared an appeal.  And a dilemma for the Court, which may face dozens of such applications on a regular, recurring basis…
Section 36 of the Administration of Justice Act 1970 is, astonishingly for an Act, clear.  Ish.  The Court can stay or suspend possession proceedings when making the order for possession, or before the order is executed.   Mr Jayashankar was seeking a stay at his appeal post-execution.  It was too late for Mr Jayashankar to apply for a stay; he should have done so when applying for the order to be set aside. 
It doesn’t mention anything about appeals, though.  Could the Court deal with an appeal post-execution?  It would have the effect of overturning the Act, because the Court could end up ordering the possession to be stayed after execution.  And there was an unreported case in the White Book (the bible for court practice) that suggested a court could do that.
However, the Court decided, ultimately, it couldn’t.  It would be too difficult.  Once someone has an order, they can execute it.  The idea of them having to wait 21 days for an appeal that might never take place would be wrong – it is interfering with someone’s right to justice.  The disappointed party, like Mr Jayashankar, has the opportunity to seek a stay at the hearing date whilst he appealed the order itself; that is sufficient for the defaulter’s human rights to be considered in balance with those owed money.
Nevertheless, we may hear more on this.  The County Court judge dealing with the matter pretty much begged the Court of Appeal to look at the case – he himself could not grant permission, it was already an appeal from a deputy District Judge’s order – as he could see a flood of such cases advancing.  It may well be that the Court of Appeal comes to the same decision, but at least it would provide binding clarity for the DJs dealing with such things on a daily basis.

Wednesday, 10 August 2011

Wright v Cambridge Medical Group [2011] EWCA Civ 669: splitting two causes

Causation is the bugbear of tort.  It sounds simple enough.  You live your life normally, someone does something wrong, you get injured, you sue, you win.  But getting between the something wrong and the injury is awkward.  Someone throws a rock at you when you’re driving, you swerve off the road; the throwing is close enough to cause your injury.  But if you’re a bystander at the end of the street struck by a lamp-post that’s knocked over by a lorry driver who sees the aftermath of the accident and forgets to look at the road…is the throwing the cause of THAT one?

Even worse is when there are two causes.  You get run over, you get taken to hospital, your injury gets worse.  Does the original driver pay for the hospital’s exacerbation?  Tricky.

Even trickier if one of the parties isn’t present.  This is what happened in the Wright case.  Distressingly simple facts; Clarissa, an eleven month old girl caught chickenpox, ended up with a hospital bug, and her mother called the doctor.  The doctor was negligent; he didn’t bother going to see the girl, and it was agreed that, had he done so, she would have been taken to hospital. 

Because the condition did not improve Clarissa’s mother took her to another doctor, who referred her at once to the hospital.  That’s when things got even worse.  Clarissa was already suffering, but the hospital made it worse – the antibiotics applied inflamed the bacterial strain.  Clarissa is left with long term damage to her hip.

Naturally, Clarissa brought a claim against the initial doctor’s practice.  For some reason she didn’t sue the hospital; nor did the doctor sue for a contribution.  So this was the problem.  At first instance the court couldn’t find that the doctor’s negligence caused the hip injury.  That was due to the hospital’s treatment, which would have happened regardless of when Clarissa was taken there.  Even though the doctor was negligent, he hadn’t caused the loss.

Clarissa’s mother brought the case to appeal.  Surely Clarissa suffered at least SOME harm when the original doctor failed to make the referral?  And the hospital made it worse?  On normal legal principles the initial negligence would carry though.  It’s rare when a second bout of negligence completely destroys the initial bout from a causation perspective.  The case of Rahman v Arearose suggests that, in circumstances where two bits of negligence reinforce each other, both those negligent caused the greater damage.

And so the Court of Appeal found in favour of Clarissa.  The hospital lost a couple of days of analysis and treatment because the doctor failed to refer in time.  It’s not outrageously unforeseeable that a hospital, in circumstances where they have little time, might get the treatment wrong, even more so when that already limited time is truncated by 48 hours.  The two actions were close enough to make sure the doctor was still on the hook.  And that’s without even considering whether an on-time referral might have meant a different doctor – one who would not have made the same mistake – would have dealt with matters at the hospital.  Especially given that by the time Clarissa went to the hospital it was a weekend – when there were fewer paediatric consultants to hand.

The difficulty in causation is shown though by the Court of Appeal coming to a 2-1 decision – and Smith LJ had subtly different reasons to Neuberger LJ in allowing the appeal.  Perhaps the situation would have been made clearer had the hospital been involved in the case; there is no indication as to why it was not…

Thursday, 4 August 2011

G v The Head Teacher & Governors of St Gregory's Catholic Science College [2011] EWHC 1452 (Admin): political correctness gone mad

I’ve read this decision three times and it still doesn’t make any sense.  It’s long established that schools cannot discriminate on religious grounds through imposing offensive uniform requirements.  So demanding boys have short hair is discriminatory against Sikhs or Rastafarians, for example.  School dress codes will therefore have an exclusion for properly, genuinely held religious beliefs.


St Gregory’s Catholic Science College in Harrow has a strict dress code.  It bans cornrows.  Concerned about gang influence in the area.  Fair enough?  According to Mr Justice Collins, no.  A blanket ban on them is unfair, the school should consider each case on an individual basis.  Because it does so when Sikh boys start attending.  It allows them to have longer hair than normal.  By considering them on a case by case basis.


As far as I can find out there is no religion that demands its adherents wear cornrows.  And when SG was thrown out before he started attending, because he had cornrows, he could not say that there was a religious reason for wearing them.  The best he could say was that he liked them and his family had worn them for years.

Rather bizarrely, the artists formerly known as the Department for Education have given guidance to schools that talks about indirect discrimination.  That’s not the bizarre thing; that's sensible.  The bizarre thing is that banning cornrows can amount to indirect discrimination, on the basis that the style is adopted by certain races more than others.  Leaving aside that in time that might become questionable, there’s nothing inherently “racial” about that particular hairstyle.  Besides which there may be valid grounds for banning cornrows.  Such as gang culture.

The school was fairly clear in its dress policy that hair should be small-c conservative.  Braids, for boys, were out.  The school was quite insistent with regard to its uniform policy; indeed the government recommends uniforms.   Nevertheless, an 11 year old boy was so disgusted about being made to have a different haircut, he complained about sexual and racial discrimination.

The sexual discrimination claim was dealt with sharpish, the racial one less so.  Cornrows are, according to a report in the case, a sign of freedom from slavery; a shaved head was a slave’s uniform, so freed slaves would wear long hair, carefully groomed into cornrows, or twisted into dreadlocks.  To this extent, cornrows are no different from a Rastafarian hairstyle and therefore should be permitted.  But cornrows are a lifestyle choice, rather than a religious obligation. Otherwise, how come every other boy who had cornrows was quite prepared to change hairstyle to match the uniform?

So how can it be racial?  The Equality Commission weighed in but its evidence was thrown out by the judge as being worse than useless, it had to pay costs to the school.  More good use of taxpayers' money there.

Yet despite this the judge decided that it could be indirect discrimination to ban cornrows.  A group of people took them seriously, therefore they could be disadvantaged, and as they largely come from one ethnic group – although the court did not seem to go into the differences between west and east African styles, between races of people that are, genetically, more different than Caucasians are from Maori – there could be indirect discrimination.

The judge went further.  He went back to a 1983 case about Sikhism and decided that “family and social customs can be a 'part of ethnicity' within the meaning of the [Race Discrimination] Act.”  This is surely going too far.  Sikhism is not a family tradition but a religion with hundreds of years of proud history.  If a family tradition is a part of ethnicity, does that allow a die-hard football fan to wear his club’s shirt to school?  Because his dad, granddad and great-granddad were all supporters?

The decision to me makes next to no sense.  It seems the court has just given way to a pre-teen who had a tantrum over his do.  Whether the school was right or wrong to take such a strict line is irrelevant – that is the school’s choice and the choice of the parents who send their children there.  Why should that be overturned for reasons of fashion?