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 Thomas Hayes

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.