Private nuisance – Article 6 and the costs conundrum

400px-Ffos_Y_Fran_open_cast_mine,_Merthyr_TydfilCoventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment

Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases.  Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.

Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small”  local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.

Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.

In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).

So each case is about a costs burden, which is capable of causing injustice to one or other party.

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Government still on the standing warpath


706x410q70fdb2ae613e49ab38bae8e09d0a46a228O (R o.t.a) v. Secretary of State for International Development [2014] EWHC 2371 (QB) 14 July 2014  read judgment

One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.

The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.

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The paradox beneath Strasbourg’s French veil ban decision

french-veil-ban-001S.A.S v France (Application no. 43835/11) – read judgment

The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.

On 11th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).

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Supreme Court revises confiscation order via A1P1

_41773060_mtic_carousel416x302R v Ahmad and others [2014] UKSC 36, 18 June 2014 – read judgment

A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.

The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud.  A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.

In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.

In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.

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Richard III: fairness and public interest litigation

King_Richard_III__1666500aThe Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others [2014] EWHC 1662 (QB) 23 May 2014 – read judgment

Some 527 years after his death, Richard III’s skeleton was found beneath a car park in Leicester. The Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants, sought judicial review of the decision taken by the Secretary of State to exhume and re-inter the monarch in Leicester Cathedral without consulting them and a wide audience.

The case had become a bit of a stalking horse for Lord Chancellor Grayling’s plans to reform judicial review: see my post here. Grayling may have backed off for the moment from his specific plans to reform standing rules, though he still has it in for campaigning bodies participating in judicial reviews. As we will see, counsel for MoJ had a go at saying that the Alliance had no standing, but to no avail.

But MoJ had better points, and was successful overall. And this is the moral of the story. You cannot sensibly justify the bringing of entirely meritless judicial review. But it is wrong to seek to defeat a meritorious claim by relying on standing points, without considering the public interest of the underlying case. As I pointed out in my post, the irony of the cases chosen by MoJ last year to make its case that the standing rules were all very awful were ones where government had been behaving unlawfully.

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Eastenders in Supreme Court: A1P1 filling in the gaps


EastEnders_TitleBarnes v. The Eastenders Group [2014] UKSC 26 read judgment

Not Albert Square, but it could be. The Crown Prosecution Service suspect two individuals of a massive duty/VAT fraud in their cash and carry businesses. The CPS go to the Crown Court (in the absence of the individuals) and get an order to appoint a receiver (i.e. a paid manager) to run the affairs of companies (Eastenders) in which the individuals are involved, as well as a restraint order against the individuals. Both receivership and restraint orders are set aside some months later by the Court of Appeal, on the basis that the HMRC investigator’s statements were largely “broad and unsupported assertions”. Problem: by then the receiver had run up £772,547 in fees.

Simple issue. Who bears those fees? The receiver, the CPS or the companies against whom the order was made? And A1P1 (the right to possessions) made the difference.

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Bad and Very Bad judges


9780854901418A recent, short (71 pages), and interesting book on the phenomenon of the bad judge, by Graeme Williams Q.C: details here.   You may not be surprised to read that, libel laws being what they are, all the subjects of Williams’ book are in their graves. But, as the author points out, the lessons derived from their badnesses live on.

A number of themes emerge.

The first is that bad judges are often clever judges, but people temperamentally ill-suited to listening patiently to other people – which is unsurprisingly a large part of their job.

The second is that some of the most disastrous appointments are truly political ones. Mercifully we now have a sophisticated system of judicial appointments which is currently divorced from the rough and tumble of politics – though with the politicisation of the office of the Lord Chancellor, and the shrilling-up of the press debate about “unelected judges etc etc” we need to keep a beady eye on that. We also have judicial training and all judges will have sat as part timers before they get appointed, so the worst instances of unsuitability get weeded out before they get the full-time job.

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Not in our name: Parliamentary committee rejects Government’s case for Judicial Review reform – Angela Patrick

RCJ restricted accessAngela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.

Proposed Government restrictions to judicial review, including new cuts to legal aid, have already been dissected in detail by this blog (see here, here and here). Controversial Government proposals to limit when legally aided claimant solicitors will be paid in judicial review claims came into force last week (Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations).  

Heralding the arrival of the changes, the Lord Chancellor again repeated his now oft-heard refrain that reform is necessary to prevent “legal aid abusers” tarnishing the justice system.  Specific restrictions were justified to limit judicial reviews “instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.

Today, the Joint Committee on Human Rights (JCHR) publishes its verdict in a lengthy and considered report on the likely impact on access to justice of the cuts and the proposed changes in Part 4 of the Criminal Justice and Courts Bill. In short, the Committee rejects the case for reform and suggests that the Government go back to the drawing board.

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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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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 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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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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Supreme Court upholds gay discrimination ruling in hotel case

Peter-and-Hazel-Bull-007Bull and another (Appellants) v Hall and another (Respondents) [2013] UKSC 73 (27 November 2013) - read judgment

This appeal concerned the law on discrimination. Mr and Mrs Bull, the appellants, own a private hotel in Cornwall. They are committed Christians, who sincerely believe that sexual intercourse outside traditional marriage is sinful. They operate a policy at their hotel, stated on their on-line booking form, that double bedrooms are available only to “heterosexual married couples”.

The following summary is taken from the Supreme Court’s press report. See Marina Wheeler’s post on the ruling by the Court of Appeal in this case. A full analysis of the case will follow shortly.

References in square brackets are to paragraphs in the judgment.

The respondents, Mr Hall and Mr Preddy, are a homosexual couple in a civil partnership. On 4 September 2008 Mr Preddy booked, by telephone, a double room at the appellants’ hotel for the nights of 5 and 6 September. By an oversight, Mrs Bull did not inform him of the appellants’ policy. On arrival at the hotel, Mr Hall and Mr Preddy were informed that they could not stay in a double bedroom. They found this “very hurtful”, protested, and left to find alternative accommodation. Continue reading

UK may need law against secret filming and photography after European Court ruling – James Michael

A-photographer-with-a-cam-006Söderman v. Sweden – (application no. 5786/08) – Read judgment

The European Court of Human Rights has decided that it is a violation of the right to privacy if a country does not have a law prohibiting surreptitious photography of people. The ruling has serious implications for paparazzi, and would have been useful to Princess Diana.  A ready-made bill exists in the form of a draft published by the Law Commission for England and Wales in 1981.

On 12 November the Grand Chamber of the European Court of Human Rights ruled that Sweden’s lack of a legal ban on invading personal privacy by surreptitious photographs violated the right to privacy. The case involved a camera hidden in the bathroom by the stepfather of a fourteen-year old girl. (Söderman v. Sweden,application no. 5786/08).

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