The Round up: UAE pardons British spy suspect, Interpol gets a new president, Court of Appeal overturns damages in haemophilia/autism case

26 November 2018 by

KJY

New Interpol President Kim Jong-Yang – credit The Guardian

From Strasbourg to the Strand, this week saw a plethora of judgements delivered in cases with notably interesting facts. However, arguably the most widely reported legal news concerned two stories, neither involving judgements in the UK courts. The case of six-year-old girl sexually assaulted by other pupils at a primary school made headlines after a local authority, whilst not admitting liability, settled her claim following a round table meeting in March this year. The High Court has now approved this settlement to make it binding on the parties (a necessary move when one party is a child to prevent them seeking further damages when they attain a majority) in litigation which some consider may contribute to legal precedent. More on that here. Meanwhile, the case of Matthew Hedges, a British academic jailed for life in the UAE on spying charges widely considered unfounded, appears to be resolved.  Reports this morning indicate Mr Hedges has been unconditionally pardoned and is likely to be released imminently. This case raised profound questions about the rule of law and reliability of the judiciary in a Middle East country considered one of the West’s closest and most reliable partners.

In the courts, this week saw judgement given in the case of Khan v MNX [2018] EWCA Civ 2609. Philip Havers of 1 Crown Office Row appeared before the Court of Appeal as counsel for the respondent mother in an action against the appellant general practitioner. The judgement provides an interesting analysis of the necessary relationship between the loss sustained and the scope of the duty of care. See Rosalind English’s post on the first instance judgment here.

A child was born to a mother who had been anxious to avoid a haemophilia diagnosis in her own children after her nephew was born with the condition. She was erroneously reassured after consulting her GP that her offspring would not be born with haemophilia. It was accepted that had she known of the risk of the disease afflicting her own children, she would have undergone foetal abnormality testing and ultimately elected to have a termination when the antenatal diagnosis was made.

Unfortunately, her child was born not only with haemophilia, but with unrelated autism. The question before the court was whether compensation could be awarded in relation to the child’s autism diagnosis, or just the haemophilia alone. In overturning the decision of the court below, the Court of Appeal relied upon the case of South Australian Asset Management Corportation v York Montague Ltd (SAAMCO) to hold that there must be an adequate link between the breach of duty and the particular type of loss claimed. The duty thus extended only to protect the claimant from loss consequent to giving birth to a child suffering from haemophilia. The GP could not be held responsible for further losses inherent from the risks of any pregnancy, such as giving birth to a child suffering from autism, even if these were a foreseeable consequence of the breach. The case of SAAMCO was contrasted with Chester v Afshar, in which the loss was the very misfortune that the defendant had a duty to warn against, and thus recoverable.

The week also saw Interpol unexpectedly reject the appointment of Alexander Prokopchuk as its new President, following the detention of its previous head Meng Hongwei on corruption charges in China. The possibility of Prokopchuk’s appointment had caused considerable alarm throughout western capitals following allegations of the Kremlin’s abuse of Interpol red notices as a tool against political opponents.

Worry over malign interference by governments in the exercise of the function of supranational organisations is not however confined to Interpol. Whilst Kremlin advocates might well respond with their own examples of western conduct, the case this week of Ognevenko v. Russia in the ECHR provided further illustration of such concerns. In an isolated dissenting judgement, the Russian judge Dimitry Dedov accused the ECHR of a “pedagogical function” and the imposition on countries of invented and controversial standards. The judgement resurrected (and indeed Dedov himself referenced) the controversy following Bayev and Others v. Russia, where Dedov dissented against the ECHR’s ruling against Russia’s “gay propaganda law” in a judgement condemned by some as homophobic. Such cases raise questions about the strength of protection of human rights offered by supranational organisations and its occasional conflict with self determination in societies where oppressive measures can enjoy popular support.

Finally, a duo of defamation cases illustrated the difficulties inherent in asking the courts to balance the protection of reputation against the right to employ flippant or exaggerated language.

In Toranzo Gomez v. Spain an individual who accused the Spanish police of physical torture was awarded compensation at the ECHR after he was convicted in Spain of defamation. The individual had suffered bruising after chaining himself to concrete installed inside a building during a protest. The police and fire brigade were unable to accurately assess his assertion that he was physically unable to release himself and had employed force in an attempt to remove him. They had also restrained him to prevent him kicking down supports which had been installed by the emergency services to prevent the collapse of the building. Ultimately, due to the suffering caused by these actions, the protester voluntarily released himself after two days. The individual subsequently accused the police of torture in front of national media and was later convicted of defamation. The Court held that there had been interference with his Article 10 rights to freedom of expression. Conviction in criminal court was unjustified in pursuit of the legitimate aim of defending the police and criminalising his colloquial use of the word “torture” had a chilling effect on his freedom of expression.

Meanwhile, in the UK, the Court of Appeal upheld the decision of the High Court to dismiss a libel claim brought against the father of a girl who had made an allegation of rape and who went on to commit suicide days before her trial on charges of perverting the course of justice – Economou v De Freitas [2018] EWCA Civ 2591. The respondent had made a variety of statements concerning his daughter’s allegation of rape against the claimant and the subsequent decision of the CPS to bring charges against her. Some of these were deemed to be defamatory in nature and cause the claimant serious harm. However, the father successfully argued that there was a public interest defence and that some of the publications failed the serious harm requirement.

 

 

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: