Lord Neuberger, President of the UK Supreme Court, has issued one of his presidential proclamations – which is what he does when he wishes to change the law from his lofty but unaccountable position. Nominally the case he was considering, Arnold v Britton & Others, was a simple enough matter regarding service charges for a set of chalets on the Gower peninsula: clause 3(2) of the lease said the price for work such as mowing grass, maintaining roads through the site and sewers &c was to be £90 in 1974 rising by 10% a year; how should this be interpreted nearly 40 years on when the annual figure was more than £3,000 per chalet and rising? (Inflation would produced a figure of less than £800 by 2012.)
If the charge were truly to rise by 10% a year the lessor would be making a very substantial surplus over the term of the lease thanks to compounding (Year 2: £90 + £9 = £99; year 3: £99 + £9.90 = £108.90 and so on annually.) As Davis LJ in the Court of Appeal noted:
“The figures before us are illustrative of the consequences. For a lease on a one year compounded uplift, the annual service charge payable was, for the year end 2012, some £3,060. At the same compounded annual rate of increase, the projected annual sum payable for service charges in the last year of the term stands to be some £1,025,004: this for modest holiday chalets, the use of which is restricted to half of each year.”
That’s a million pounds per chalet. There were 25 involved in the litigation but 91 in total, some with a less onerous system of payment for services. The outcomes would vary depending on when the leases were issued. Nevertheless, if the clause in the lease were allowed to stand, the lessors would have pulled in hundreds of millions in pure profit over the 99 years of the lease. This on a term of the lease which, it is axiomatic, should not be profit-making since it is merely for the lessor to recover expenditure on ongoing maintenance of the common facilities (see Lease – though holiday chalet leases aren’t covered by legislation for homes). Continue reading
The celebrity threesome and a judicial foursome
Has the UK Supreme Court attempted to put the frighteners on the British press in the “celebrity threesome” sex case of PJS v News Group? The matter has not yet come to full trial, yet Lord Mance, who gave the lead judgment from the interim injunction hearing, has already accepted there is no public interest in the issue of who is PJS, the celebrity in the threesome.
Does this mean the Sun on Sunday, seeking to overturn an injunction against naming the alleged adulterer and his spouse, known as YMA, has been declared the loser before the case is heard?
Lord Mance has also suggested the Supreme Court might be amenable to establishing that damages for publishing such stories could be exemplary (a notion rejected in Mosley v News Group at a lower court level); or perhaps there could be innovative use of an “account of profits” – in effect handing over profit gained from use of private material. In Douglas v Hello regarding Hello’s unauthorised coverage of the Douglas/Zeta-Jones wedding, Lord Phillips said: “Such an approach may also serve to discourage any wrongful publication, at least where it is motivated by money.”
Arguably the court has also favoured the extension of the right to privacy beyond the limits set in the Human Rights Act and (at least until recent years) by Common Law – to the way a story is told rather than the mere confidential facts – thus embedding the so-called judge-made privacy law.
Lord Mance, in introducing his judgment to the press, said this (according to the Guardian):
“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.”
This is subtly different from the rather more circumspect phraseology of Mance’s actual judgment, on behalf of himself and three other justices:
“There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it [lifting the injunction] would involve significant additional intrusion into the privacy of the appellant, his partner and their children.” (para 44; emphasis added)
The judgment is, quite correctly, hedged around with qualifications whereas the press statement is boldly assertive – and arguably misleading, suggesting that the highest court in the land has established a legal principle and found the Sun on Sunday outside it in seeking to run the PJS story. Why the difference? Continue reading →
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Tagged as Celebrity threesome, Injunctions, Legal procedure, Lord Mance, Lord Neuberger, News UK, PJS v News Group, Supreme Court