Monthly News Archives: July 2012
16 July 2012 by David Hart KC
Flatela Vava et al v. Anglo American South Africa Ltd [2012] EWHC 1969 (QB) 16 July 2012, Silber J read judgment
Back to the problem of when and where you can sue various members of a group of companies. In the Cape case (for which see my post), a parent company was held liable for failing to ensure that its subsidiary properly managed the risks posed by asbestos. In this case of Vava, the claimants wanted to sue a South African registered holding company (AASA) in the UK, on the basis that the real decisions were taken in the UK, and hence AASA were domiciled in the UK for purposes of suing them.
The case came before Silber J, on an application by the claimants for documents relevant to this jurisdictional issue. AASA resisted, on the basis that there was not a good arguable case that it could be sued in England, and therefore it did not have to produce the documents relevant to this issue.
Continue reading →
Like this:
Like Loading...
16 July 2012 by Rosalind English
JEG v The Trustees of the Portsmouth Roman Catholic Diocesan [2012] EWCA Civ 938
Elizabeth Anne-Gumbel QCand Justin Levinson of One Crown Office Row acted for the claimant in this case. They did not write this post.
The Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.
This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan – see Rachit Buch’s post for an excellent analysis of the issues and summary of the facts.
Continue reading →
Like this:
Like Loading...
16 July 2012 by Adam Wagner
The current debate on legalising gay marriage was sparked by one of the more memorable speeches of this Government, when Prime Minister David Cameron said “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.”
What has been missing from the debate since that speech has been a convincing, measured discussion from the political right on what he meant. Until now, that is. Today the Policy Exchange, a leading conservative think tank thank, has published What’s In A Name? Is there a case for equal marriage? Don’t be fooled by the question mark in the title. This report represents the best and most carefully considered case for equal marriage from a conservative (with a small ‘c’) perspective so far.
Continue reading →
Like this:
Like Loading...
16 July 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
Lord Neuberger is to be our next Supreme Court President, replacing Lord Philips who is retiring and pipping rival candidates Lady Hale and Lord Mance. In other news, some interesting cases were decided this week, including the Catholic Church’s loss in a vicarious liability case in the Court of Appeal, and the residents of the Fred Wigg Tower lose their judicial review action challenging the decision to put a missile defence system atop the building for the Olympics. We also have more law reform updates, as the Commission for a Bill of Rights published its second consultation paper, the House of Lords debated the ever-controversial Justice and Security Bill, and a commentator provided an illuminating and worrying discussion of the “snooper’s charter”, the Draft Communications Bill.
Continue reading →
Like this:
Like Loading...
13 July 2012 by David Hart KC
Harrow Community Support Ltd v. Secretary of State for Defence [2012] EWHC 1921 (Admin), Haddon-Cave J, 10 July 2012, read judgment
In 776BC, the Olympics consisted of one day’s running and wrestling. A hundred years later, chariots and single horses arrived, thanks to the influence of Phaidon of Argos (a big shot in seventh-century Greece), and I dare say the civic pride which each participating Greek city-state brought to the Games was already running high. But I don’t suppose either Phaidon or Baron de Coubertin would have predicted the move which triggered this piece of litigation. The MoD decided to site a missile launcher and military personnel on the roof of a Council tower block in Leytonstone during the Olympics. Like all military hardware, it has a nice acronym, GBAD, being a Ground Based Air Defence system.
Anyway, a residents’ association formed by residents of Fred Wigg Tower, 15 storeys and containing 117 flats, decided to challenge the MoD. As their petition put it, “We, the undersigned residents of FWT, Montague Road, Leytonstone E11 3 EP, do not want explosive missile systems placed on the roof of our home”. Nor, I suppose, do any of us, but some of us may want someone else to have missile launchers on their roofs.
Continue reading →
Like this:
Like Loading...
12 July 2012 by Guest Contributor
Lord Pannick
Last night saw the latest round of Lords debate on the Justice and Security Bill. It should be required reading for the Secretary of State. Peers from all benches challenged the Government’s case for the breadth of reform proposed in the Bill. A number of amendments have been tabled jointly in the names of members of the Joint Committee on Human Rights and the Lords Constitution Committee, both Committees having already castigated the Government’s proposals as potentially harmful to the common law principles of open, adversarial and equal justice.
JUSTICE hosted Ken Clarke, QC MP, Lord Chancellor and Secretary of State for Justice in conversation earlier this week. One of the topics on the table was the Justice and Security Bill. During the evening – helpfully tweeted by the Human Rights Blog’s own Adam Wagner and others (you can read the time line of tweets here) – Ken Clarke stressed his view that the opposition to the Justice and Security Bill posed by JUSTICE together with most other human rights organisations and the Special Advocates is misguided.
Continue reading →
Like this:
Like Loading...
11 July 2012 by Rosalind English
Medhanye, R(on the application of ) v Secretary of State for the Home Department [2012] EWHC 1799 (Admin) (02 July 2012) – read judgment
EU law is based on a central principle of mutual confidence. It therefore flies in the face of this trust to impose a legal duty on one member state to monitor whether another Member State was complying with its obligations under that law, including its obligation to respect fundamental human rights.
Background facts
The claimant, an Eritrean national, sought asylum in the UK, having previously claimed asylum in Italy. The secretary of state decided to remove him to Italy under Regulation 343/2003 (Dublin II). The claimant challenged the Secretary of State’s decision to certify as “clearly unfounded” his claim that removing him to Italy would breach his rights under the European Convention on Human Rights (“ECHR”). His application for judicial review was refused.
Continue reading →
Like this:
Like Loading...
11 July 2012 by Adam Wagner
Last year, the troubled Commission on a Bill of Rights consulted the public on whether the UK needed a new human rights instrument. Many, including me, commented that the consultation document was a little sparse on detail. In any event, the consultation closed in November 2011. The full responses have been published here and you can also read my summary of some of the submissions
Anyway, eight months and one acrimonious resignation later, not to mention just over 5 months before the Commission is due to report, they are consulting again. This time, the consultation document is more substantial and provides some useful detail as to the kind of ideas being considered. The Commission has requested that those responding don’t repeat what they have already said. The deadline for responses is 30 September 2012. This must put the Commission’s deadline to report by the end of 2012 in some doubt, unless the point of the consultation is simply to confirm what it has already decided.
Continue reading →
Like this:
Like Loading...
10 July 2012 by Alasdair Henderson
A & S v. Lancashire County Council [2012] EWHC 1689 – read judgment
The poor quality of provision for children in care was much in the headlines last week. A highly critical report by the Deputy Children’s Commissioner, which found children in many privately run care homes were at high risk of suffering violent or sexual abuse, was followed by the Government’s announcement of plans to speed up the adoption process and allow families who wish to adopt children to foster them first.
The problems of the current system and the effect these have on the lives of individual children was also vividly highlighted in a tragic case in which the High Court held that a series of failures by a local authority constituted a breach of two young boys’ rights under Articles 3 (protection from inhuman and degrading treatment), 6 (fair trial rights) and 8 (family and private life rights).
The very distressing story of the boys’ lives to date is set out in considerable detail at paragraphs 18-102 of Mr Justice Jackson (Jackson J)’s judgment. However, the brief facts are as follows. A and S are brothers who were first taken into care in 1998, aged just 3 and 6 months’ old, after their mother abandoned them. The local authority initially placed them with their aunt, but she was a single woman with six children of her own and could not cope.
Continue reading →
Like this:
Like Loading...
10 July 2012 by Rosalind English
Transpetrol v Slovakia, Application no. 28502/08 – read judgment
The facts of this case can be stated very briefly, since the main (and most interesting) question before the Curt was whether the applicant company constituted a “victim” of a human rights violation under the Convention.
The applicant s a joint-stock company trading in oil. In the past, including at the time of the contested judgment of the Constitutional Court, the state owned 51% of the shares in the applicant company. The remaining shares were owned by private parties. At present all of the shares in the company are owned by the state.
The application before the Court concerned the fairness of proceedings before the Constitutional Court regarding the ownership of shares in the company. The applicant company complained that the proceedings were contrary to its rights under Article 6(1) (fair trial) of the Convention and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions). The complaint was dismissed under Article 34 as being inadmissible (incompatible ratione personae, i.e. the status of the applicant). For the purposes of clarity, here is the relevant text of Article 34:
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.
Continue reading →
Like this:
Like Loading...
9 July 2012 by David Hart KC
A sparkling, erudite and funny lecture last Thursday 5 July from the Chief Justice of Australia, exploring how the Australian system with a constitution, but without a Bill of Rights/Human Rights Act, seeks to deliver human rights protection – thanks to the Administrative Law Bar Association and the Angl0-Australasian Law Society. I shall try to summarise the differences, though, rather like the pre-HRA UK position, Australian human rights protection is a subtle one and a difficult one to explain in a short post. Particularly for a Pom. So I am in part throwing down a challenge to our Australian readers (up until this point, at least, quite a few) to comment on what follows.The constitutional framework is all important. There are three major differences between this and the UK “constitution”. The first is the presence of a written constitution over 100 years old, and amendable only by referendum. The second is a federal system laid down by that constitution. Out of that arrangement comes a separation of powers between judiciary, legislature, and executive, and also between the Commonwealth (i.e, the federation) and each State, taken against the background of general common law principles drawn from the States’ shared colonial history. And the third is the lack of any substantive human rights instrument applicable to Australia as a whole.
Continue reading →
Like this:
Like Loading...
9 July 2012 by Guest Contributor
Philips v Mulcaire [2012] UKSC 28 – read judgment
The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.
The appeal related to a request for further information served by the Claimant, Ms Nicola Phillips, on the Second Defendant, Mr Glenn Mulcaire, the private investigator engaged by the newspaper.Mr Mulcaire had declined to provide the information, asserting that to do so would be contrary to his privilege against self-incrimination, having regard to the significant scope for criminal prosecution he still faced arising from his alleged phone hacking activities.
Continue reading →
Like this:
Like Loading...
8 July 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Wessen Jazrawi
In the news
Glenn Mulcaire lost his appeal before the Supreme Court in the phone-hacking scandal this week. He was appealing orders that he answer questions relating to his activities, including questions concerning the identity of the person instructing him to intercept the messages, on the basis of privilege against self-incrimination. In other news, the CPS has issued new guidance in rape and murder cases, and 1 Crown Office Row is recruiting to fill one third-six pupillage vacancy.
1 Crown Office Row recruiting
1 Crown Office Row is recruiting to fill one third-six pupillage vacancy – the deadline is Wednesday 11 July at 4 pm. See here for further details, including how to apply.
Continue reading →
Like this:
Like Loading...
6 July 2012 by Rosalind English
R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment
This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.
Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.
Continue reading →
Like this:
Like Loading...
5 July 2012 by Rosalind English
SK (Zimbabwe) v Secretary of State for the Home Office 19 June 2012 – read judgment
This case raises the interesting question whether someone who was involved as a member of the ruling Zimbabwe Zanu PF party with farm invasions can be eligible for refugee status. The answer is a definite no: the High Court held that the Upper Tribunal had been entirely correct in finding that a Zimbabwean national, who had beaten farm workers in farm invasions intended to drive farmers and farm workers away from their farms, had committed inhumane acts amounting to crimes against humanity under the Rome Statute art.7(1)(k) and therefore by virtue of the Convention relating to the Status of Refugees 1951 (United Nations) art.1F(a) was excluded from refugee status.
Continue reading →
Like this:
Like Loading...
Flatela Vava et al v. Anglo American South Africa Ltd [2012] EWHC 1969 (QB) 16 July 2012, Silber J read judgment
This blog is run by
Recent comments