In SCA Packaging Ltd v Boyle [2009] UKHL 37 the House of Lords took an issue of statutory interpretation by what is meant by the word ‘likely’ in the Disability Discrimination Act 1995? In particular Sch 1 para 6(1) on the effects of treatment, i.e. that it is to be ignored if, in its absence, the impairment “would be likely to have a substantial adverse effect on the person concerned to carry out normal day to day activities”. The DDA Guide had always stated that it meant ‘more probable than not’ (so a 51% plus test) and this had been adopted in the case law – (see Latchman v Reed Business Information Ltd [2002] ICR 1543, EAT).  The House of Lords have now heard the case and in speeches given by Lord Rodger and Lady Hale have held that likely meant ‘could well happen’ and that this is now the test to be applied.

R (on the application of G) v Governors of X School [2009] IRLR 434 held that in certain circumstances there may be an overarching right to legal representation before an internal disciplinary hearing, regardless of what the organisation’s rules say on the matter.  Kulkarni v Milton Keynes Hospital HNS Trust [2009] EWCA Civ 789 is a Court of Appeal authority on the point but in the context of medical disciplinary proceedings.

Note: in ordinary disciplinary proceedings, where all that is at stake was the loss of a specific job, art 6 of the ECHR would not be engaged. However, where the effects of the proceedings could be far more serious and could, in that case, deprive the employee of his right to practise his or her profession, article 6 would be engaged.

The Times has compiled a list of the top 100 lawyers in 2009. The top 10 reads as follows:

1) Lord Phillips of Worth Matravers, senior law lord

2) Lord Judge, Lord Chief Justice

3) Jack Straw, Lord Chancellor and Secretary of State for Justice

4) Lord Bingham of Cornhill, retired senior law lord

5) Lord Neuberger of Abbotsbury, Lord of Appeal in Ordinary (and next Master of the Rolls)

6) Clive Stafford Smith, founder of the the prisoners’ charity, Reprieve

7) Lord Carlile of Berriew, independent reviewer of terrorism laws for the Government

Baroness Hale of Richmond, first and only woman to reach the Appellate Committee of the House of Lords

9) Lord Pannick, QC, “the Rolls-Royce of silks” who has appeared in 99 House of Lords cases

10) Shami Chakrabarti, barrister and Director of the Human Rights organisation, Liberty

To view the profiles of the the above and the remaining 90 top lawyers, visit http://business.timesonline.co.uk/tol/business/law/article6714782.ece

Couwenbergh v Valkova [2008] EWHC 2451 (Ch) is authority for the proposition that the law does not call for a perfectly balanced mind in order for a will to be valid.  A will is not invalid where the testator acted capriciously, eccentrically or with bad motives.  Where the will is rational on its face and is duly executed, a court will presume that the testator was mentally competent. Those wishing to show the testator’s unsoundness of mind then have the burden to adduce evidence in support.

However, once there is evidence before the court which credibly calls into question the testator’s capacity to make a will at the time the will was made, the burden then shifts to those who wish to show that the testator was in sound mind at the time of making the will to adduce evidence in support.

Similar cases include:

Scammell v Farmer [2008] EWHC (Ch) – despite the testator being diagnosed with the early onset of Alzheimer’s in September 2001, it was held that the testaor had testamentary capacity when she made a will in early 2003.

Hoff v Atherton [2005] WTLR 99 – it is possible to have testamentary capacity despite suffering from mild to moderate dementia

The Mental Capacity Act 2005

S.1(2) states that: “a person must be assumed to have capacity unless it is established that he lacks capacity”.

S.2(1) now provides a statutory definition of someone who lacks capacity as: “…..a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

S.2(2) provides that: “It does not matter whether the impairment or disturbance is permanent or temporary”.

s.2(3) and (4) states that a lack of capacity cannot be established merely by reference to: “a person’s age or appearance, or a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity….….any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities”.

S.3(1) lays down the test of capacity as follows: “a person is unable to make a decision for himself if he is unable

(a) to understand the information relevant to the decision;

(b) to retain the information;

(c) to use or weigh that information as part of the process of making the decision; or

(d) to communicate his decision (whether by talking, using sign language or any other means)”.

Each person must be helped to make and communicate their decisions.

The claimant was a gambler and started telephone betting with the defendant in May 2006.  In June 2006 the claimant asked the defendant to exclude him from telephone gambling for six months as he was having serious gambling problems.  The claimant later suffered financial ruin and a deterioration in his gambling disorder.  The claimant issued proceedings that the defendant had negligently failed to adhere to the agreement.

At first instance, the judge found that the defendant had breached its duty to the claimant as a result of which the later losses in 2006 flowed.  The judge went on to find, however, that as the claimant was a compulsive gambler, he may well have ruined himself by betting with one of the defendant’s competitors.  The claimant’s claim was dismissed and the claimant appealed.

The Court of Appeal found that the approach to causation had been incorrect.  The defendant did not assume responsibility to prevent the claimant from gambling, but only assumed a responsibility to prevent him from placing telephone bets with them.  As was found, the claimant did gamble in other ways and with other bookmakers.  The scope of the defendant’s duty was to help the claimant control his gambling, not to protect him from his gambling propensity or to enable the claimant to gamble free from all risk.  On this analysis, the claimant’s appeal was dismissed.

Students may find this an interesting case as the claimant was not claiming for damages caused by (what he felt was) a breach of the duty.  The claimant was attempting to claim for losses outside of any breach.

It is to be remembered that for any claim in negligence, it must be shown that there was:

i) a duty of care;

ii) a breach of that duty; and

iii) damage caused by that breach of duty

Your CV has got you the interview at the firm or chambers; you have survived the questioning and sold yourself and your abilities in the process. Then comes the phrase “Have you got any questions for us”? A top tip at this stage is to say something along the following lines:

“Yes, after this interview what will you have determined as my weaknesses or reasons why the position would possibly be offered to someone else”.

This does two things:
1) gives the candidate the chance to assess where a negative impression may have been created during the interview; and
2) it allows discussion to take place so that explanations can be given or arguments can be made as to why the interview panel have got the wrong impression on certain matters and/or why those certain matters are not actually weaknesses at all.