Does “damage” go wider than injury? Supreme Court on jurisdiction

Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment

Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.

The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.

The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.

On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.

But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.

Let me set the scene for this, before telling you the result.

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10 cases that defined 2017

christmas-2960048_960_7202017 has been a dramatic year in global politics and no less in the world of human rights law.

It has been a fascinating time to be editor of the UK Human Rights Blog. As just a taster, decisions have ranged across issues of the best interests of a seriously ill child, the conduct of British soldiers in Iraq and whether a transgender father should be allowed access to his children in an ultra-religious community. But there is much, much more.

So pour yourself a large measure of whatever you fancy, unwrap that mince pie waiting for you in the larder, and let me take you by the hand as we embark on a whirlwind tour of 10 of the biggest human rights cases of the year:

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High Court decision refusing ultra-Orthodox transgender father access to children quashed — Paul Erdunast

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Re M (Children) [2017] EWCA Civ 2164, 20 December 2017, read judgment

The Court of Appeal reversed the judgment of the High Court that a transgender father from the ultra-Orthodox Jewish community should not have direct contact with her children. The case was remitted to the Family Court for reconsideration.

 

Facts

The factual background is fully set out in the High Court judgment of Peter Jackson J (as he then was). The parents and their five children are all from the ultra-Orthodox Charedi Jewish community of North Manchester. The mother and children remain there, while the father no longer lives within the community after leaving in June 2015 to live as a transgender woman. Both parents agree that the children should be brought up within the community.

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Listen up! Thoughts on gender segregation and urban development

We have two new podcasts up on iTunes Law Pod UK.

Charlotte Gilmartin if you remember recently unpacked the planning dust-up  over the Eagle Wharf redevelopment in Regent’s Canal in her recent post on the High Court judgment. More on this important decision and its implications for planners in her discussion here.

And the case of the Islamic state school of Al-Hijrah in Birmingham which attracted so much attention when the High Court ruled in favour of Ofsted’s critical report continues to make waves. Rajkiran Bahey analysed it here and ponders the many issues involved in discussion with Rosalind English here.

One Crown Office Row’s podcast series Law Pod UK are available from iTunes and Audioboom

Supreme Court holds that the smoking ban cannot be enforced in prisons — Hannah Wilce

R (on the application of Black) v The Secretary of State for Justice [2017] UKSC 81

Read Judgment

cigarette 2Is the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006 (“the smoking ban”)?

This was the question asked of the Supreme Court by a prisoner serving an indeterminate sentence at HMP Wymott.  As Lady Hale noted in the judgment: this issue affects all premises occupied by the Crown, including central government departments, and that it is important to determine whether the ban can be properly enforced in these places.

The answer the court gave is ‘no’, as this provision does not bind the Crown, of which HMP Wymott is an institution.

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Reasons and planners again: Supreme Court

13454123443_80fef9d87e_bDover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment

The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover. 

The interest is in the breadth of the decision – how far does it extend?

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MOD to compensate Iraqis for “ill treatment”

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Aseran and others v Ministry of Defence [2017] EWHC 3289 (QB) 14 December 2017 – read judgment

The High Court has upheld claims by four Iraqi civilians that their human rights had been breached by the British army. Their claims in tort were rejected as time-barred.

These were four claims in the large scale action known as the Iraqi civilian litigation. This judgment follows the first full trials of civil compensation claims in which the claimants themselves and other witnesses testified in an English courtroom. The introduction given by Leggatt J best explains the picture.

The claimants in these cases are Iraqi citizens who allege that they were unlawfully imprisoned and ill-treated …by British armed forces and who are claiming compensation from the Ministry of Defence. Questions of law raised by the conflict in Iraq, some of them novel and very hard questions, have been argued in the English courts and on applications to the European Court of Human Rights since soon after the conflict began. Until now, however, such arguments have taken place on the basis of assumed facts or limited written evidence.

The four claims were tried as lead cases out of more than six hundred remaining cases. All the claims were advanced on two legal bases. The first was the general law of tort under which a person who has suffered injury as a result of a civil wrong can claim damages from the wrongdoer. Because the relevant events occurred in Iraq, the Iraqi law of tort was applicable. But the claims were subject to a doctrine known as Crown act of state which precludes the court from passing judgment on a claim in tort arising out of an act done with the authority of the British government in the conduct of a military operation abroad. Continue reading