Monthly News Archives: March 2015


The Supreme Court on statelessness, EU citizenship and proportionality

31 March 2015 by

statelessnessPham v Secretary of State for the Home Department [2015] UKSC 19 – read judgment

Angus McCullough Q.C. and Shaheen Rahman from 1COR acted as Special Advocates earlier in these proceedings. They had nothing to do with the writing of this post.

On first glance, this was not a judgment about human rights. It concerned the definition of statelessness under article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons, and raised issues of competence and jurisdiction in relation to EU citizenship. Its specific interest for human rights lawyers lies primarily in the observations about the principle of proportionality; and in where the case, which most certainly does raise human rights issues, is likely to go next.

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Google’s misuse of private browsing data entitles individuals to damages – Court of Appeal

31 March 2015 by

google-sign-9Google Inc v Vidal-Hall and others [2015] EWCA Civ 311 (27 March 2015) – read judgment

This case concerned the misuse of private information by an internet provider based in the United States. Google had secretly tracked private information about users’  internet browsing without their knowledge or consent, and then handed the information on to third parties (a practice known as supplying Browser-Generated Information, or ‘BGI’).

The issue before the Court of Appeal was twofold:

  1. Was the cause of action for misuse of private information a tort, specifically for the purposes of the rules providing for service of proceedings out of the jurisdiction?
  2. What was the meaning of ‘damage’ in section 13 of the Data Protection Act 1998 (the DPA) and in particular, did it give rise to a claim for compensation without pecuniary loss?

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Is the New Zealand Parliament about to drop commitment to the rule of law?

31 March 2015 by

wellington-new-zealand-parlament480The New Zealand Parliament seems about to drop that country’s commitment to the rule of law from the Act underpinning the judicial branch. Retiring Supreme Court judge (and former Solicitor-General) Sir John McGrath thinks that’s worrying. He’s right. There’s still time for ex-pat Kiwis to lobby the Minister of Justice.

One of the first legislative measures of the young South Pacific colony, back in 1841, drafted in part by the Birmingham born first Chief Justice, Sir William Martin, was the creation of what is now known as the High Court of New Zealand.

That legislation has been updated over the years, significantly in the 1880s before consolidation in 1908 in the Judicature Act. That Act was overseen by the country’s fourth Chief Justice, the remarkable, Shetland born, Sir Robert Stout.
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Grayling’s legacy, naked rambling and the benefits cap: It’s the Round-up!

30 March 2015 by

Naked RamblerLaura Profumo brings us up to speed with the latest human rights happenings.

In the News

“It seems hard to believe that Grayling will remain Lord Chancellor for long”. Joshua Rozenberg delivered a biting analysis of the minister’s future legacy in the Law Gazette last week. As the General Election looms, “perhaps Cameron has finally begun to realise how much anger and despair there is at the steady erosion in access to justice for which Grayling is held responsible”. If the Conservatives lead the next government, the Lord Chancellor will struggle to secure his place, Rozenberg warns.

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War inside the court room

29 March 2015 by

iraqAl-Saadoon & Ors v Secretary of State for Defence [2015] EWHC 715 – read judgment

The High Court has ruled that the ECHR applies to situations where Iraqi civilians were shot during security operations conducted by British soldiers. When taken together with the parallel cases being brought against the MOD for breach of its Article 2 obligations towards its own soldiers, it appears increasingly likely that any operation undertaken by the British Army in the future will lead to legal challenges being brought against almost every aspect of its actions pre, during and post any use of military force.

Mr Justice Leggatt was asked to consider the scope of the UK’s duty under the ECHR to investigation allegations of wrongdoing by British Forces in Iraq. The Secretary of State accepted that anyone taken into custody by British Forces did have certain rights under the ECHR, in particular the right to life and the right not to be tortured. However, the one of two key areas of controversy were whether non detainee civilians who were killed outside the period when the UK was an ‘occupying power’ (1 May 2003 – 28 June 2004), were within the jurisdiction of the UK for the purposes of Article 1 of the ECHR.
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The Tale of the Black Spider: The Supreme Court speaks

27 March 2015 by

Photo credit: The Guardian

Matthew Flinn

And so, the long legal saga of the Black Spider Letters finally comes to a close.

I last blogged about this case back in October 2012. At that time, the Attorney General had ignited controversy by invoking a little-known power under section 53 of the Freedom of Information Act 2000 (FOIA).

Under that provision, he issued a certificate which effectively vetoed a decision of the Upper Tribunal that a number of items of correspondence sent by Prince Charles to seven Government Departments (characterised as “advocacy correspondence” as opposed to personal letters) had to be disclosed to Mr Rob Evans of the Guardian newspaper.

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How to sue in respect of abusive comments on the Internet

25 March 2015 by

Internet-TrollThe Bussey Law Firm PC & Anor v Page [2015] EWHC 563 (QB) – read judgment

The facts of this case are simple. A defamatory comment was posted on the claimant’s Google maps directional page, implying that he was a “loser” as a lawyer and that his firm lost “80%” of cases brought to them. The defendant claimed that someone must have hacked in to his own Google account to put up the post.

There were jurisdictional complications in that the firm is situated in Colarado but these need not concern us here as Sir David Eady, sitting as a High Court judge, allowed the trial to go ahead in England. The real question was  why any third party would have gone to the trouble of hacking into the defendant’s Google account in order to post the offending review; if the objective were merely to hide the hacker’s identity from the claimants, there would be the simpler option of setting up an anonymous Google account. This would in itself render the would-be publisher untraceable, and especially if it were done from a public computer.
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The true statistics behind judicial review’s success rates

23 March 2015 by

PAjusticeAvid readers of the legal press may have spotted the eye-catching statistic that in 2014 a meagre 1% of claims for judicial review were successful.

The figure is derived from the statement in the MOJ’s overview of the Civil Justice Statistics Quarterly (October – December 2014) published on 5 March 2015, in which the MOJ said:

The proportion of all cases lodged found in favour of the claimant at a final hearing has reduced … to 1% in 2013 and has remained the same in 2014.

The overview provided by the MOJ is unsurprisingly hardly a neutral presentation of the statistics. The statement is clearly intended to tell a story about the futility of the vast majority of judicial review claims, adding fuel to the MOJ-stoked fire that has been raging against judicial review.

In fact the statistic tells the opposite story, as revealed by the underlying tables.
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Car crash Euro-damages against government upheld by CA

22 March 2015 by

weed_2929857bDelaney v. Secretary of State for Transport, Court of Appeal, 9 March 2015 – read judgment 

The Court of Appeal has recently upheld the decision of Jay J here that a drug-dealer was entitled to compensation against the Government for injuries in a car accident, even though at the time he and the negligent driver both had drugs on them. 

The Government was involved because the driver’s insurance was invalidated because of his cannabis use, and because the Government had not made provision for these liabilities to be picked up by either by insurers or the Motor Insurers Bureau (MIB), as it should have done under EU Law.

Mr Delaney therefore recovered state liability damages – which lawyers know as Francovich damages – from the Government.

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Transparency in the Court of Protection: press should be allowed names

19 March 2015 by

312856-002.jpgA healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment

The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.

This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second
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Supreme Court splits the baby over the benefit cap – Mike Spencer

19 March 2015 by

Money purse - WalletR(on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16 – read judgment

The Supreme Court was sharply divided yesterday over whether the benefit cap breaches the Human Rights Act. The controversial cap limits the total amount of benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. As a result, lone parents with children in large families are disproportionately affected, both because they are more likely to be hit by the cap and because they are less likely to be able to avoid its effects.
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The Round-up: Fee hikes, JR funding and the death of Sidaway

16 March 2015 by

imgres-2

Photo credit: Guardian

Alex Wessely brings us the latest edition of the Human Rights Round-up

In the news

Planned increases in court fees have been given the green light after successfully clearing the House of Lords. As the Law Gazette reports here a 5% charge will be added to all civil claims valued above £10,000, with an aim to raise £120m per year for the court service. ObiterJ writes that “for many people in need of the law, access to justice will now be a forlorn hope”. Whereas Lord Faulks, a Minister behind the reforms, argued that litigation is “very much an optional activity”, this was disputed by Lord Pannick – “litigation is often a necessity to keep your business alive or to maintain any quality of life”. Joshua Rozenberg, writing in the Guardian, bemoans the lack of attention paid to these significant increases, which shows that “the public has very little interest in what is being done in its name”.

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“High-minded tosh” – the current brouhaha about the Magna Carta

16 March 2015 by

National Archives Displays An Original Copy Of Magna CartaLet’s apply some hard history to the 13th century charter governing the obligations flowing between King John and his barons, or at least read the thing (translation here). So says Lord Sumption in a fascinating address to Friends of the British Library on 9 March.

All sides jockey for position at the Magna Carta shrine, but its significance is entirely due to the myth-making tendencies of the seventeenth century politician and judge Edward Coke.  Since he plucked the charter quite clean of its historical context, the claims made in its name are extraordinary and downright self-serving:

In his column in the Daily Telegraph, Peter Oborne recently described the European Convention on Human Rights as a “document which entrenches the principles of Magna Carta in international law.” Others have come forward to suggest that the partial abrogation in 2014 of a legal aid system which was first created in 1949 was contrary to Magna Carta. Recently, a Global Law Summit in London, which was essentially an international marketing opportunity for British lawyers, described itself on its website as “grounding the legacy and values of Magna Carta in a firmly 21st Century context.

Sumption is not against liberty of the subject, nor motherhood and apple pie, nor even international marketing opportunities for lawyers, but he does have a problem with “the distortion of history to serve an essentially modern political agenda.”
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An update on my new human rights project, RightsInfo

14 March 2015 by

RightsInfo-Logo- FACEBOOK 3An update on my new human rights project, RightsInfo.

You may have noticed the name change. The Human Rights Information Project is no more. A bit of a mouthful. So, RightsInfo.

More importantly, we have a launch date: Tuesday 21 April 2015. If you are interested in coming to the launch party then please sign up to the email updates via www.rightsinfo.org, I will be sending out details shortly. And sign up anyway if you want to know more about the project.

You can also follow on Facebook and Instagram.

I’m not going to say any more except there is a huge amount of work going into the project and it is looking fantastic – all will be revealed on 21 April!

Supreme Court reverses informed consent ruling: Sidaway is dead

13 March 2015 by

montgomery_3228283bMontgomery v. Lanarkshire Health Board [2015] UKSC 11, 11 March 2015  – read judgments here

James Badenoch QC of 1COR was for the mother in this case. He played no part in the writing of this post.

An important new decision from a 7-Justice Supreme Court on informed consent in medical cases. 

In the mid-1980s a majority of the House of Lords in Sidaway decided that it was on the whole a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk. Thus the principle that the standard of medical care is to be determined by medical evidence (which all lawyers will know as the Bolam principle) was extended to the quality of information to be provided to a patient about a given treatment.

The Supreme Court, reversing the judgments at first instance and on appeal, has now unequivocally said that Sidaway should not be followed.

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