Monthly News Archives: December 2017


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

23 December 2017 by

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

22 December 2017 by

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

22 December 2017 by

Open_Torah_scroll.jpg

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

21 December 2017 by

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.

Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast. 

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

21 December 2017 by

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

20 December 2017 by

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”

18 December 2017 by

iraq war human rights compensation civilian Camp Bassa compensation damages conflict of laws international humanitarian law

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.
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High Court quashes guidance on deporting EEA nationals who are sleeping rough

15 December 2017 by

R (On the Application of Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin)

Read the judgment here: http://www.bailii.org/ew/cases/EWHC/Admin/2017/3298.html

homeless-person-sleeping-in-doorwayRecent years have seen a significant increase in the number of people sleeping on the streets in Greater London — the figure has more than doubled since 2017.[1] This includes people of all nationalities, and a significant number of EEA nationals.

The High Court has quashed policy guidance which set out the circumstances in which “rough sleeping” would be treated as an abuse of EU Treaty rights, rendering an EEA national liable to removal if this would be proportionate .

Factual Background

The Claimants were two Polish nationals and one Latvian national against whom removal notices had been served. They challenged the legality of the policy on the basis that it was contrary to EU law.

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Indefinite Detention and the Rule of Law — Catherine Jaquiss

12 December 2017 by

temple church.jpgOn 1 December 2017 an event in Temple Church with the Bar Council in collaboration with Refugee Tales, an outreach project whose aim is to see the end of indefinite immigration detention, saw an announcement of new recommendations for reform of the system of immigration detention.

 

This followed from the publication on 30 November 2017 of ‘Injustice in Immigration Detention, Perspectives from Legal Professionals’, an independent report by Dr Anna Lindley of SOAS. Read the report here: http://www.barcouncil.org.uk/media/623583/171130_injustice_in_immigration_detention_dr_anna_lindley.pdf

 

The Bar Council, led by Andrew Langdon QC, is making a series of recommendations in light of the report, as follows:

 

  1. A 28-day time limit for administrative detention;

 

  1. Automatic judicial oversight of the arrangements for holding people in administrative detention;

 

  1. Adequate legal aid for advice and representation for those held in immigration detention to challenge the loss of their liberty;

 

  1. A ban on the use of prisons for the purposes of administrative detention;

 

  1. Special care for vulnerable people and victims of torture held in administrative detention; and

 

  1. Review and clarification of the criteria for administrative detention. The relevant policy and rules need to be accessible and intelligible so that all those who are affected by the exercise of powers to detain understand the reasons for the exercise of those powers and can challenge decisions where appropriate.

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Undercover police officers: how far does their legal liability go?

8 December 2017 by

TBS v Metropolitan Police Commissioner [2017] EWHC 3094 – read judgment

The High Court has refused an application to strike out a claim in negligence and misfeasance in public office taken by someone born as a result of a liaison between an activist in the animal liberation movement and a man who subsequently turned out to be an undercover police officer.

Although this is not a full trial of the merits, the ruling from Nicol J triangulates on very interesting questions relating to “wrongful life” claims, legal duties owed by people in public office, and the predictability of harm as well as the identity of potential victims. It also touches on the character of psychiatric harm, and how difficult it is to identify the point at which it can legitimately be said to arise. Whatever the results of the ultimate litigation, the arguments here raise sharp questions of public policy as to who, and what, should be compensated from the public purse. There is also a deep philosophical question underlying the whole argument which is known as the “non-identity problem”. Can you harm somebody by bringing them into existence?
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When can a Closed Material Procedure be used?

7 December 2017 by

padlockBelhaj and Boudchar v. Director of Public Prosecutions (Foreign Secretary intervening) [2017] EWHC 3056 (Admin) – read judgment here.

The Justice and Security Act 2013 introduced the idea of Closed Material Proceedings (CMP) to civil litigation in a significant way for the first time. This is a procedure (which had previously only used in a small number of specialist tribunals) whereby all or part of a claim can be heard in closed proceedings in order for the court to consider material which, if disclosed publicly, would risk harming national security. These hearings exclude even the claimant, who is represented instead by a Special Advocate who takes instructions and then is unable to speak to his or her client again once they have seen the sensitive material.

This system is obviously far from ideal. Indeed it is a major deviation from the usual (and very important) principle that justice must not only be done, but be seen to be done. It was introduced because the alternative in some cases involving national security matters was no justice at all. But it must be used sparingly. In particular, the 2013 Act allows its use only in civil litigation and not in “proceedings in a criminal cause or matter” (section 6(11)). The question that the Divisional Court had to consider in this case is how wide that exception for criminal matters should be.

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Supreme Court rules on time limitation for claims under the Human Rights Act

6 December 2017 by

O’Connor (Appellant) v Bar Standards Board (Respondent) [2017] UKSC 78  – read judgment

The Supreme Court has ruled that a barrister’s claim against the Bar Standards Board for discrimination should not be time barred under the one year limit prescribed by the Human Rights Act. In her case, the Court said,  the time limit for bringing proceedings only started running when she successfully appealed against disciplinary action taken against her. The decision to bring disciplinary proceedings and the subsequent hearings were part of a single process, not a series of disparate acts which set the time limitation period running.

The Court also concluded that the High Court judge was correct to conclude that the appellant’s claim of indirect discrimination in respect of her right to be treated equally under the law (Articles 14 and Article 6) did have a real prospect of success.

The following report is based on a combination of the full judgment and the Supreme Court’s press summary.

 

Background facts and law

Ms O’Connor is a practising barrister who faced a number of disciplinary charges brought against her by the Bar Standards Board in 2010. In May 2011, the Disciplinary Tribunal found most of these charges proved. The appellant, who is black, appealed to the Visitors of the Inns of Court and in August 2012 her appeal was allowed on the basis that none of the alleged conduct involved any breach of the Bar Code of Conduct.

In February 2013, the appellant issued the present proceedings, which included an allegation of violation of Article 14 of the ECHR together with Article 6. She claimed that the BSB, by bringing the disciplinary proceedings. had discriminated against her on racial or ethnic grounds. In particular, she alleged that the respondent had infringed her right to a fair trail on grounds of race.

Since this was a claim under section 6 of the Human Rights Act 1998 the limitation provisions under that Act applied. The BSB maintained that this claim was time – barred under section 7(5)(a) of the 1998 Act which provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place.

Shortly afterwards the respondent sought to strike out the case on the basis that none of the appellant’s had any real prospect of success and, in any event, there was a complete defence under section 7(5)(a) . Although the strike out was initially successful, on appeal Warby J in the High Court held that there was a sufficiently pleaded case that the respondent had indirectly discriminated against the appellant. However, he also held that the claim was indeed time – barred under the Human Rights Act.
The Court of Appeal held that the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the appellant proved and so had expired before she had issued her claim.
The appeal essentially turned on one question: when the ‘prosecution’ of the appellant commenced .  If it started with the decision to bring proceedings was taken in 2010 then the one – year time limit had expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant was considered to be a continuing state of affairs up to the tribunal decision, time under section 7 only expired in May 2012, which meant that her discrimination claim was in time.
It was argued on behalf of the respondent that the decision to refer the appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one – off act with potentially continuing consequences rather than a continuing violation.

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The Current Situation in Cambodia — Rajkiran Barhey

6 December 2017 by

cambodia image

On 5th December 2017, an event exploring the current political situation in Cambodia was held at Chatham House. The discussion was led by Sam Rainsy, a key member of Cambodia’s recently dissolved opposition party, the Cambodian National Rescue Party (CNRP). The discussion touched on a plethora of issues relevant to politics and human rights in Cambodia, ranging from the impact on Cambodia of China’s dam-building project to the Khmer Rouge Tribunal.

 

This article will provide a brief history of Cambodia before reviewing four topics which were considered at the event: (1) the influence of China; (2) the power of the army; (3) sanctions and aid; and (4) the 2018 election.

 

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Polluter Pays Principle: in Tobago, in the EU/UK, and in UK post-Brexit

1 December 2017 by

Fishermen & Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017 – read judgment

A vignette of where

(1) Trinidad and Tobago is,

(2) the EU/UK is,

(3) where Michael Gove may wish us to be post-Brexit,

on the Polluter Pays Principle (PPP), a key environmental principle.

As we shall see, in legal terms, the expansiveness of (1) and (2) contrasts with the potential parsimony of (3).

Now (3) may be better than nothing, as per the European Union (Withdrawal) Bill, i.e, no enforceable environmental principles at all. But that does not mean we should not aspire for more. After all, as we shall see, the PPP is hardly a racy new entrant into environmental law.

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