Public Eye - Spring 2008 - Mills & Reeve

Case law update
Johann Wylly 0121 456 8226
johann.wylly@mills-reeve.com
10
Accent Peerless Limited v Kingsdon &
Kingsdon (12 December 2007)
This case involved two tenants against
whom possession proceedings were brought
under the Housing Act 1988 by a housing
association. The association claimed that
the defendants’ behaviour had amounted
to a campaign of harassment against their
neighbour.
The tenants both suffered from
post-traumatic stress disorder and, as a
result, they were hypersensitive to noise and
tended to exaggerate the effect on them of
noise and other disturbances. They made
repeated complaints about their neighbours
to the Environmental Health Department, to
the association and to the police. This,
together with behaviour such as contacting
their neighbour’s employer to make false
allegations, led to this claim of harassment.
At the trial, a psychiatrist gave evidence to
the extent that the defendants could control
their behaviour to a degree, but that their
feelings about the current situation would
not change without medical treatment and
therefore, given that they had refused this
treatment, they were unlikely to give up this
campaign against their neighbours.
The judge found that the defendants were
guilty of the acts of nuisance and that their
conduct was unjustified. He therefore
granted an outright possession order. The
defendants appealed this decision on the
basis that their behaviour had now ceased
and therefore it was not reasonable to make
a possession order. The Court of Appeal
dismissed this contending that, although
there had been an improvement in the
defendants’ behaviour, they had refused
treatment. This clearly showed that their
attitude had not changed and therefore, in
light of their medical condition, it was likely
that the defendants would re-offend.
Letting International Ltd v Newham
London Borough Council (21 December
2007)
The facts of this case were that the
appellant property management company
had brought proceedings alleging that the
local authority had failed to disclose in
advance the full criteria for awarding
contracts, had therefore acted unfairly and
without transparency and was in breach of
the Public Contracts Regulations 2007. The
company had applied for an interim
injunction to prevent the authority from
entering into further contracts until the
conclusion of proceedings.
The key issue was whether there was a
serious issue to be tried about a tendering
procedure adopted by the local authority
and also whether an interim injunction
should have been granted. The judge in the
High Court found that, though the case was
arguable, it was not sufficiently strong to
warrant the grant of an injunction. Further,
while damages would be a sufficient remedy
for the company, they would not be
adequate for the local authority and so the
balance of convenience was against
granting the junction.
The Court of Appeal reminded itself of the
test for granting of interim relief in American
Cyanamid Co (No1) v Ethicon (1975):
whether or not there was a serious issue to
be tried, whether damages were an
adequate remedy and whether the balance
of convenience favoured maintaining the
status quo. The local authority had argued
that there was no serious issue to be tried
because the company could not
demonstrate that it had suffered any loss or
risk of loss and it could not show that, but
for the alleged breaches, the company
would have been successful. The Court of
Appeal said that this test set the bar too
high. It was not required that every claim
had to show that there would otherwise
have been a successful tender. What the
company had lost was the chance to
compete and this was enough.
The decision takes a logical principled
approach and one which is within the spirit
of competitive tendering. It illustrates that
local authorities can face challenges
notwithstanding that the challenger
would probably not have been awarded
the contract in any event and is a reminder
to public bodies generally of the need to
maintain scrupulous standards of
transparency in tendering.
Camden London Borough Council v
Price Job (18 December 2007)
Camden dismissed Mrs Price-Job nine
months into a two-year term because of her
disability-related sickness absence. The key
issue in this case was whether the duty to
make reasonable payment adjustments
under the Disability Discrimination Act 1995
was limited to steps that the employer knew
or ought to have known were available.
The employment tribunal had concluded
that termination of her employment was not
justified and that, if the local authority had
complied with its duty to provide various
items of workstation equipment, she would
have been able to work. It found that the
local authority was also under a duty to
arrange its own medical assessment and
that it ought to have allocated some of
her duties to another person during her
absence.
The Employment Appeal Tribunal (EAT)
allowed the appeal. It remitted the questions
of adjustments and justification to the
tribunal. It concluded that failure to obtain
medical assessment before dismissal is not
breach of duty to make reasonable
adjustments. To conclude that the duty was
dependent on the employer's knowledge
would substantially restrict the nature of the
duty and could not be derived from the
statutory words. HHJ Burke said:
"The duty is to make adjustments ... in order
to prevent the effect of the substantial
disadvantage which must be proved to exist
... The steps contemplated by s.4A must
have the effect of preventing, in whole or in
part, that disadvantage; the obtaining of a
medical assessment does not ordinarily have
that effect. It may inform the employer of a
step or steps which could fall within s.4A;
but there is nothing in s.4A to suggest that
the duty to make reasonable adjustments
arises only when the employer knows or
ought to have known that such a step or
steps is or are available ... "