Public and private law wrongs are not the same – Court of Appeal

110618346_Vincent_398959c Tchenguiz v. Director of the Serious Fraud Office [2014] EWCA Civ 472, 15 April 2014 – read judgment

This judgment is a neat illustration of how important it is to keep the concepts of public law and private law unlawfulness separate – they do not necessarily have the same legal consequences.

It arose thus. The Tchenguiz brothers are high-profile businessmen, and they did not take kindly to being arrested and bailed on charges of fraud at the behest of the SFO. They sought judicial review of the search and arrest warrants. In due course, the Divisional Court ([2012] EWHC 2254 (Admin)) held that the SFO had made material non-disclosure and factual misrepresentations to the judge which vitiated the grant of the warrants, and the brothers have brought a substantial follow-on claim for damages - £300 million according to another recent judgement here.

So the Tchenguiz brothers have established unlawfulness, but, as we shall see, this does not automatically entitles them to damages.

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Chagossians update

330px-Chagosmap

A lot is happening in various challenges related to the long-running and shameful exclusion of the Chagossian people from their islands in the Indian Ocean. 

Here are the headlines, with a reminder of what these cases are about:

First, the Court of Appeal has just (2 April 2014) heard an appeal by the Chagossians against the dismissal of their challenge to the designation of the waters around the islands as a Marine Protected Area. 

Second, the closed hearing of the UNCLOS Arbitral Tribunal on the merits of the Chagos dispute (Mauritius v UK) is to be held at Istanbul on 22 April 2014. This also concerns the designation of the MPA.

Thirdly, the public hearing in the UK Information Tribunal on access to Diego Garcia pollution data appeal under the Environmental Information Regulations 2004, which the FCO — contrary to the view of the Information Commissioner — says is inapplicable to overseas territories) is to be held on May 1st, 2014.

Now to a little more detail.

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Consultation – backing no horses, and the importance of interim relief

_69067404_daycentreprotestLH, R (o.t.a) v. Shropshire Council  [2014] EWCA 404 (Civ), Court of Appeal, 4 April 2014  - read judgment

Good advertisement for the flexibility of the common law, this case. This is because the duty to consult owed by a public body extends into all reaches of public law, from the regulation of a metal trading company (see my recent post here) to care centres and residential homes. Indeed it was in the context of residential home closures that the modern law got worked out. In the 1992 case of  ex parte Baker there had been a draft community care plan which had made no reference to the closure of individual homes, and which was followed up by a bolt from the blue – residents of one home only had 5 days’ notice that their home was to close.  

In none of these cases is there a statutory duty to consult – it is an aspect of common law fairness. 

The LH case concerns the closure of an adult care day centre. The question in LH was how to apply the principles in Baker to a rather more nuanced consultation approach, where closure of day centres in general was raised in consultation, but the closure of the specific day centre (Hartleys) was not.

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Backing just one horse in a consultation process can be unfair


Aluminum-Warehouse21United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  [2014] EWHC 890 (Admin), Phillips J, 27 March 2014  - read 
judgment

Public law principles allow you to challenge a decision of a public authority if the consultation process preceding it was unfair. Unfairness comes in many shapes and sizes, but the commonest one alleged is that it was not carried out at the formative stage. The authority had already made up enough of its mind so the consultation process ceased to mean anything  - it was just going through the motions.

The law is equally clear that an authority does not have to consult on every conceivable option. Indeed it can just consult on its preferred option. 

But this decision shows that if it does so it has to be wary, because on the particular facts that may be unfair.

Enter our cast, challenger in the form of Rusal (proprietor one Oleg Deripaska), and the defendant, the London Metal Exchange.

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Supreme Court: Strasbourg’s mixed messages about Article 10 and any right to receive information

Kennedy v. Charity Commission et al, Supreme Court, 26 March 2014 read judgment

In judgments running to 90 pages, the Supreme Court dismissed this appeal by Mr Kennedy, a Times journalist, for access to documents generated by the Charity Commission under the Freedom of Information Act 2000 concerning three inquiries  between 2003 and 2005 into the Mariam Appeal. This appeal was George Galloway’s response to the sanctions imposed on Iraq following the first Gulf War, and little Mariam was a leukaemia sufferer. Mr Kennedy’s suspicion, amongst others, was that charitable funds had been used by Galloway for political campaigning.

The Charity Commission had refused the request on the ground that the information was subject to an absolute exemption from disclosure contained in s.32(2) of the FOIA. The Supreme Court (in common with the Court of Appeal) held that the absolute exemption applied and dismissed Mr Kennedy’s request. But the result was a little closer in the SC, with two judges dissenting, essentially on Article 10 grounds.

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CA says Prince Charles’ advocacy letters should be produced

article-2218614-15875C88000005DC-566_634x536R (o.t.a Rob Evans) v. Attorney-General,  Information Commissioner Interested Party, 12 March 2014 - read judgment

The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.

At that point, the Attorney-General intervened and signed a certificate saying “no”.

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Strasbourg on Mormons and their temples

2787465_d39c5a43THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. THE UNITED KINGDOM, ECtHR, 4 March 2014 - read judgment

An apparently dry dispute about business rates on one of the Mormons’ temples in Preston (see pic) has reached Strasbourg and raises interesting issues about indirect discrimination on religious grounds. The underlying question was whether the temple was a place of “public religious worship” and therefore exempt from rates. 

 There are over 12 million Mormons in the world, with 180,000 in the United Kingdom and Ireland. Their organisation is important for this application. Local congregations are called wards, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a “stake”. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place.

Preston is one of two temples in the UK. Mormons regard these temples as the holiest places on earth – top of the religious hierarchy. But the question was – is worship there “public”?

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Supreme Court brings private nuisance into the 21st century

270866141Coventry v. Lawrence [2014] UKSC 13, 26 February 2014, read judgment

The law of private nuisance is the way of balancing the rights of neighours, the right to be noisy or smelly, and to be free of noise or smells. Hitherto it is has been explicitly a private law remedy, and has slightly odd rules. But it has been struggling with public interests for some years; are they irrelevant, or can they carry the day for claimant or defendant in a private nuisance claim?

Fortunately, enough of the big issues bedevilling this area of the law came before the Supreme Court in one fell swoop. And they have led to an important re-balancing of the rules. In particular, public interest is relevant, but not at the first stage of deciding whether someone has a claim, but later – can they get an injunction to stop the noise or should they be confined to damages?

 And all this arose in the context of some speedway, stock car, banger and motocross racing in an otherwise fairly rural bit of Suffolk.

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How not to get a pre-inquest review wrong

Coroners-CourtBrown v. HM Coroner for Norfolk [2014] EWHC 187 (Admin) - read judgment

This is the sad tale of a young woman aged 31 dying in mysterious circumstances where the inquest went off entirely on the wrong footing. Joanne Foreman was not a diabetic but lived with a young boy who was. It was suspected that on the night before she died she had drunk heavily and then injected herself with insulin. The inquest proceeded on this basis. Nobody told the expert that the paramedics had taken a blood glucose from Joanne, which was entirely normal.  Once this was known, it was obvious that the court would quash the findings at inquest and order a new inquest.

But the case contains powerful guidance from the Chief Coroner (sitting as a judge on this decision) about how to conduct the pre-inquest review.

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How to be fair about transfer to Broadmoor

hospitalR (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment

Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.

L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.

So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.

But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.

Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.

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Aarhus: CJEU rules against UK costs regime

F_AarhusConventionCommission v. UK, judgment of CJEU, 13 February 2014  - read judgment - UPDATED

Litigation costs are troublesome, but they are particularly difficult in environmental cases where the claimant is not necessarily pursuing his private interests. This case is the result of a long-running and successful campaign by NGOs to persuade the EU Commission to investigate UK environmental legal costs. The main finding may not bother the UK too much, because wisely it saw this one coming and changed costs rules in environmental public law cases. A subsidiary ruling about cross-undertakings has also been more recently included in a rule change.

 

All of this comes from Article 9 of the Aarhus Convention (to which the EU has subscribed) which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. Continue reading

Judicial review changes: inevitably the same result if no unlawfulness?

baconsthorpe-castleNorth Norfolk District Council v. Secretary of State for Communities and Local Government, [2014]  EWHC 279 (Admin), Robin Purchas QC sitting as a Deputy High Court Judge, 14 February 2014 – read judgment

In my last post, I explained how Chris Grayling’s proposed reforms might affect planning and environmental challenges, and, hey presto, within the week, a perfect illustration of one of the points which I was making – with implications for all judicial reviews.

One of the proposals in the Criminal Justice and Courts Bill (see here) is that a challenge to an unlawful decision should fail if it is highly likely that the outcome for the applicant would not have been substantially different, had the public authority not acted unlawfully. This compares with the current test which is that the decision should be quashed unless it is inevitable that the decision would be the same.

 Cue a proposed wind turbine (86.5m to blade tip) to be placed on one of the highest points of Norfolk and affecting the setting of two Grade I listed buildings (Baconsthorpe Hall and Barningham Hall) and a number of Grade II* churches. The Inspector allowed the turbine on appeal from the local planning authority, which decision the judge has now set aside. Continue reading

Grayling’s proposals for environmental and planning judicial review

mus_1192620167Sections 50 to 57 of the Criminal Justice and Courts Bill and Explanatory Notes; the full Government response is here, 4 February 2014

At first sight, proposals full of sound and fury, and signifying not a great deal for planning and environmental challenges. There are some slippery costs changes which we need to look at, but some of the potentially more concerning proposals (see Adam’s post and the linked posts) do not fully apply to this area, as I shall explain. There are also some perfectly sensible proposals about harmonising planning challenges which lawyers have been advocating for years.

This consultation got going in September 2013 when Grayling put forward his round 2 of reform to judicial review in a wide-ranging, and frankly worrying, consultation paper. This week’s announcement and draft bill seeks to take some of these measures forward, but leaves others at home.

Mercifully, the bill does not include the ill-thought out consultation proposal to reform rules about standing in judicial review – who can complain of unlawful action by government? The proposal had been very worrying to those concerned with environmental challenges. It would have led to the rather unsatisfactory position that a NIMBY complaining about a nearby development would have been able to challenge an unlawful decision, but an entirely altruistic concern about unlawfulness affecting, say, birds, bats or habitats would have been dismissed not on the merits, but because the NGO or individual conservationist had insufficient “interest” in the outcome. See my previous post on this.

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High speed rail, Parliament, and the EU Courts

World war one tankR (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, [2014] UKSC 3 – read judgments

So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.  

The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the  Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.

Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the  Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates. Continue reading

What really goes on in the Supreme Court

9781849463836On 9 December 2013, Professor Paterson launched his new book, Final Judgment (Hart Publishing, absolutely no relation), via the Second annual Bailii lecture, Decision-making in the UK’s top court – read lecture here, order book here (£21.25, Amazon) or direct from the publishers at £20 here (reference ‘PATERSON’ to get the further discount)

The lecture summarises a wise, perceptive, and at times funny work of scholarship, and this post is an unashamed plea that you read the book as well as the lecture.

The book is based upon over 100 interviews with Law Lords, Justices and counsel. Paterson is particularly well-placed, having carried out a review in the 1970s with 15 then current or former Law Lords and 46 counsel. He has also looked at the judicial notebooks of two of the outstanding leaders of the judicial House of Lords, namely Lord Reid in the 1960s and 1970s, and Lord Bingham in the 2000s. These notebooks contain not only records of counsel’s arguments, but also details of what the Law Lords or Justices thought at the end of the “first conference” held immediately after the oral hearing. And the revelation was that in many important cases the judges’ view shifted between that conference and the ultimate decision, often with a critical impact on the outcome. One of the particular interests of the book is to follow through the big cases of the last years, and see how the judges ended up where they did.

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