Round Up 13.04.20 – The work of the courts continues despite the impact of Covid-19…

13 April 2020 by Thomas Hayes

The bandstand on Clapham Common, fenced off while people use the area for daily exercise. Photograph: Guy Bell/REX/Shutterstock. Credit: The Guardian.

Needless to say, the impact of Covid-19 dominated all aspects of life over the past seven days. Given that the week saw the Prime Minister admitted to intensive care with the virus before ultimately being discharged home, this is unlikely to be much of a revelation. The UK Human Rights Blog has published many articles looking in detail at some of the legal challenges posed by Covid-19 and the Government’s response to the pandemic. Of note this week:

• Dominic Ruck Keene looks at potential legal challenges to Government policy in respect of coronavirus – here;
• Robert Craig considers whether the Coronavirus Regulations might be ultra vires – here;

• Darragh Coffey explores the provisions of the Coronavirus Act 2020 – here;

• Rosalind English reviews a paper published by the Society of Conservative Lawyers on the consequences of coronavirus for the traditional principle of rule of law – here; 

• The Royal College of Nurses issued guidance to its members advising them that they could “as a last resort” refuse to treat patients suffering from Covid-19 if they are not given adequate personal protective equipment; and
• Police came under increased scrutiny with regards to the exercise of their powers to enforce social distancing measures. The Chief Constable of Northamptonshire had to clarify statements that suggested officers may resort to checking the trolleys of grocery shoppers to determine if items purchased were “essential” or not.

The courts however continue to function as best they’re able. Those with an interest in law, and indeed those without but who have exhausted Netflix, can watch live streamed hearings in the Supreme Court taking place by video link. Judgments in the lower courts are currently being emailed to the parties and released to the British and Irish Legal Information Institute for public consideration. It can’t be long before Legal Cheek publishes the first report of an advocate desperately apologising to a judge for turning their back on them when they realised their spouse had drifted semi-naked into their submissions en route to the shower.

Perhaps because writing judgments lends itself relatively well to social distancing (in contrast to say, holding a jury trial), the courts this week continued to hand down judgments with regularity before the Easter weekend:

• Runa v Secretary of State for the Home Department [2020] EWCA Civ 514 (08 April 2020). The case provided a further opportunity for the courts to explore the tricky area of law in which an individual conceives a child whilst they remain in the country illegally, and the impact of deportation proceedings on the remaining family unit when the children and partner are British citizens. The court held that when performing such an analysis, the question is whether or not it is reasonable to expect the child to leave the UK, not whether there are “insurmountable obstacles” to the maintenance of family life outside the UK.

• LE (St Vincent And the Grenadines) v The Secretary of State for the Home Department [2020] EWCA Civ 505 (07 April 2020). In a further immigration case, the Court of Appeal dismissed an appeal bought by a former serviceman convicted of dishonestly making false representations, against the decision of the Upper Tribunal’s upholding the Home Office’s actions to deport him. His appeal on the grounds that he was owed a greater duty under the Armed Forces Covenant or that separating him from his children would be “unduly harsh” was rejected.

• The Secretary of State for the Home Department v FTH, R. (On the Application of) (Rev 1) [2020] EWCA Civ 494 (06 April 2020). The court allowed the Secretary of State’s appeal against the finding of the immigration tribunal that there had been a breach of Article 8 ECHR, and that therefore compensation was due, in respect of an Eritrean child whose application to join his brother in the UK following French authorities closure of the Calais “jungle” camp was delayed. The case concerned the Dublin III regulations, under which if a child seeking asylum is unaccompanied and has a sibling or other close relative in another EU Member State then, if it is in the child’s best interests, that other state is responsible for considering and determining his application for asylum.

• University College London Hospitals NHS Foundation Trust v MB (Rev 1) [2020] EWHC 882 (QB) (09 April 2020). The High Court ruled in favour of the National Hospital for Neurology and Neurosurgery, who sought an order seeking possession of an inpatient bed on one of their hospital wards. The respondent patient had alleged that the package of care proposed to support her upon discharge provided by Camden council was insufficient. The hospital wished to discharge patients where at all possible in anticipation of increased demand due to the Covid-19 pandemic. The judge ordered that the patient vacate the ward by midday the following day.

• NKX v Barts Health NHS Trust [2020] EWHC 828 (QB) (08 April 2020). A claim was successfully brought against Barts Health NHS Trust for breach of duty in respect of midwives’ duty to inform a mother in delivery of the different methods of observing a fetal heart rate available in different delivery settings and the risks and benefits thus conferred. The judgment relied upon the decision in Montgomery v Lanarkshire and underscores the obligation on medical staff to inform patients fully of all the risks and benefits of proposed treatments rather than making assumptions about the right course of action themselves.

• Crossley & Ors v Volkswagen Aktiengesellschaft & Ors [2020] EWHC 783 (QB) (06 April 2020). 91,000 litigatnts in a group litigation order succeeded in obtaining a preliminary ruling that Volkswagen circumvented air pollution tests by using special software to reduce emissions of nitrogen oxides under vehicle test conditions.

Lastly, in some (welcome) non-coronavirus material this week, Euan Lynch reports on the Supreme Court’s judgment in the Serco lock change case, whilst on Law Pod UK Roslaind English discusses recent developments in the law of vicarious liability with Robert Kellar QC and Isabel McArdle.