Supreme Court: the common law working out illegality defence

_41773060_mtic_carousel416x302Jetivia v. Bilta [2015] UKSC 23, 22 April 2015 – read judgment

Nigel Farage is quoted yesterday as preferring immigrants to be Australians and Indians rather than EU citizens, because they probably speak English and “understand common law.” 

Nice coincidence, then, that on the same day the Supreme Court came out with a perfect illustration of the potential difficulties of the common law process. This is the latest (but unlikely to be the last) instalment from the Court going to the question as to whether some crime by a claimant ought to stop his claim in its tracks.

The issue is well demonstrated by this claim, in effect a carousel fraud (see pic and see my post here), in which a company the victim of a fraud seeks to recoup losses from the fraudsters and is met with the argument – but your directors were in on the fraud too. How does the law deal with this?

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Consultation again – this time for dentists

simple-consultation-y200British Dental Association v. General Dental Council [2014] UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED

Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.

The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.

Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.

As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.

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Consultation duty gets to the Supreme Court

NL33293-039Moseley R (ota) v. London Borough of Haringey [2014] UK 56  – read judgment

Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?

The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.

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Consultation process not unfair after all, says Court of Appeal


Aluminum-Warehouse21United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  [2014] EWCA 1271 (Civ) – read 
judgment

Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant  challenge is not an easy task. Three connected problems commonly arise:

(1) did the public body provide adequate information to enable properly informed consultation 

(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?

(3) did the consultation encompass sufficient alternatives?

In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).

The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.

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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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