Round UP 5.8.19: Principles of justice considered by the Supreme Court
5 August 2019
New President of the Supreme Court Lord Reed: Credit The Guardian.
In the week after the appointment of Lord Reed as the new President of the Supreme Court, the final week of July brought with it the end of the legal term and a flurry of judgements in the senior courts.
In the Supreme Court, the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38 (29 July 2019) gave the court the opportunity to examine the principle of open justice, in particular how much of the written material made available to the court ought to be accessible by those not directly party to proceedings. The case came about after an asbestos victim support group, not party to the initial proceedings, made an application to have access to all the documents from a settled personal injury asbestos case. The defendant from the initial trial appealed against the granting of such an order under the common law and the provisions of CPR rule 5.4C. The Media Lawyers Association intervened, advancing arguments based on the importance of media reporting to maintaining open justice, and the reliance such reporters have on access to documents subsequent to the conclusion of proceedings. In deciding to remit the matter back to the High Court, the court provided a good summary of the principles concerning open justice laid down in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420;  QB 618.
The Court of Appeal meanwhile produced several judgements this week in the field of immigration law. The appeal of a Pakistani migrant against the Secretary of State’s decision to deny him leave to remain after he unknowingly submitted a false document whilst trying to secure a Tier 2 visa was dismissed – Hameed v The Secretary of State for the Home Department  EWCA Civ 1324 (31 July 2019). The Secretary of State relied upon the case of Adedoyin v Secretary of State for the Home Department  EWCA Civ 773,  1 WLR 564, in which it was held that dishonesty or deception by a third party, even without the applicant’s knowledge, would be sufficient to create a false representation which would lead to mandatory refusal of a visa under paragraph 322(1A) of the Immigration Rules.
A further immigration case this week examined the duties owed by states under the Dublin III regulations to facilitate the reunification of families when asylum claims are made by minors who claim that their relatives have already successfully claimed asylum in another state – MS (A child) v The Secretary of State for the Home Department  EWCA Civ 1340 (30 July 2019). An Afghan child had succeeded in the upper tribunal in quashing the decision of the Secretary of State to refuse him asylum on the basis that his claimed brother in the United Kingdom was not in fact a relative, with the decision to be reconsidered in light of that established relationship by the Secretary of State. The Home Office appealed on two grounds, namely that the individual did not, under article 27 of Dublin III, have the right to call for review that decision, and that the tribunal erred in examining the existence or otherwise of any relationship between the purported brothers. Both grounds of appeal were rejected.
The Home Office also failed this week in its appeal against the decision of the Upper Tribunal to allow the appeal of an Afghan against the cancellation of his indefinite leave to remain. The individual fathered a child in Britain with his British ex-wife – The Secretary of State for the Home Department v BK (Afghanistan)  EWCA Civ 1358 (30 July 2019). In previous correspondence with the Home Office, the gentleman admitted acting as a bodyguard for Taliban forces in the 1990s and attempted to claim asylum in the UK at one stage on the basis that his return to Afghanistan would put him in danger of retribution from those he had once harmed and the relatives of those he had killed. In subsequent correspondence during a failed attempt to claim British citizenship, he had answered “no” to questions examining his membership of terrorist organisations and perpetration of war crimes. The Secretary of State claimed that these incorrect responses invalidated his indefinite leave to remain. But the Upper Tribunal reversed this decision on the grounds that he had not sought to be dishonest in his responses and that he had rights to a family/private life. The Court of Appeal dismissed the Secretary of State’s appeal, the Home Office already having conceded that he did indeed have rights under Article 8.
The previous week had also seen the High Court give judgement in the case of Flanaghan v University Hospitals Plymouth NHS Trust  EWHC 1898 (QB) (26 July 2019) in which Jeremy Hyam QC successfully represented the defendant hospital. The claim was brought by a woman who had been diagnosed with nerve compression in her neck affecting her gait, and which predisposed her to severe injury including paralysis should she suffer trauma. Several years after her initial consultation, during which a course of conservative management was embarked upon, the claimant unfortunately fell, sustaining a worsening of her neurological condition. At this time she underwent surgery, but made a poor recovery. The claimant alleged multiple failings, concerning both the decision to pursue non-operative management initially and the choice and timing of her emergency procedure. To succeed, the claimant would have needed to persuade the judge that the evidence of the claimant’s expert witness was preferable to that for the defence under the principles established in Bolitho v City and Hackney Health Authority  AC 232. After a detailed examination of the medical evidence, the judge either preferred or accepted the defendant’s expert evidence, and the claim was dismissed.
This week on the UK Human Rights blog, Rosalind English discusses recent developments from the Court of Justice of the European Union concerning the definition of waste, as well as its consequences for policy makers across the continent, and Emma-Louise Fenelon reports on Lord Sumption’s recent Reith Lectures and looks back on the best of LawPod UK over the past year.