Author: David Hart QC

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Privacy of a doctor under GMC investigation clashes with that of his patient

privacy-policy-fullDr DB v. General Medical Council [2016] EWHC 2331 (QB), 23 September 2016, Soole J – read judgment

An interesting three-way privacy fight between a GP, a patient who had complained about his treatment by the GP, and the GMC who had investigated that complaint. The prize in that fight was a copy of a medical report obtained by the GMC from an independent expert, which had concluded that the GP’s care had fallen below “but not seriously below” the expected standard.

The patient had wanted a copy of the report; all he had seen so far was a one-page summary. His motive was to investigate a possible claim for clinical negligence, arising out of the delayed diagnosis of his bladder cancer. The GP refused consent. 

The GMC then concluded it should disclose the report to the patient. And the GP brought these proceedings to stop disclosure. Continue reading →

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Hard cases need better reasons

13454123443_80fef9d87e_bR (o.t.a. CPRE Kent) v. Dover District Council [2016] EWCA Civ 936, 14 September 2016, read judgment

The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.

It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.

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War remains inside the court room: jurisdiction under ECHR

iraqAl-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016  – read judgment

This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.

3 main points arose on appeal.

The first was the jurisdictional question under Art.1 of the Convention – were  Iraqi civilians killed or injured by British servicemen covered by the ECHR?

The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).

And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.

I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.

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CA orders release of court judgment on Ellie Butler’s death

benbutler2106aC (a child) [2016] EWCA Civ 798  read judgment

This is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie. 

Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.

C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.

Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.

The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.

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The Environmental Law Foundation

elf_mainMany readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach of Article 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here 

So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.

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What lies do to claims – the Supreme Court

Marine-ClydeCo-0658_800_450_90_s_c1_c_cHayward v. Zurich [2016] UKSC 48   27 July 2016 read judgment

and Versloot Dredging BV  v HDI Gerling Industrie Versicherung AG [2016] UKSC, 20 July 2016 read judgment

Twin doses of dishonesty in the Supreme Court, last month. Both raised dilemmas for the SC trying to steer a principled way (in different circumstances) towards determining the cost of lying.

In the first, Mr Hayward claimed over £400,000 from his employers for a back injury at work. The Zurich smelt a rat and alleged exaggeration in its defence but felt ultimately they could not sufficiently prove it in court. So in 2003 they settled the claim by paying Mr Hayward just under £135,000. In 2005, his neighbours told insurers that they thought he had been dishonest. So the Zurich started proceedings to set the compromise aside and to get its money back. Mr Hayward sought to strike it out, saying “a deal was a deal”, without success. So he then faced a trial of Zurich’s claim, at the end of which Zurich was successful. But the saga was not over. He now faced a retrial of his original claim, in which he repeated the lies he had come out previously.  The judge was thoroughly unconvinced, and gave him £14,700. It was that result which was eventually appealed to the Supreme Court.

The second claim concerned marine insurers of a ship who sought to repudiate a claim on the policy because the insured owners had told a lie in presenting the claim, even though the lie proved to be irrelevant to the insurer’s liability. Owners claimed over €3,200,000 for the loss of a vessel. They said  that the crew had informed them that the bilge alarm had sounded at noon that day, but could not be investigated because of heavy weather. This was a lie told by the owners to strengthen the claim. But it turned out to be irrelevant to the result, because of the judge’s  finding that the vessel’s loss had been caused by a peril of the seas.

Both lower courts found that this lie was a “fraudulent device”, which meant the insurers did not have to pay out under the policy.

So what did the Supreme Court do with these two claims about lying?

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Whose fair trial prevails?

shutterstock_152336216-505x337Da Costa and another v. Sargaco [2016] EWCA Civ 764   14 July 2016 read judgment

Two people say they owned motorbikes which they kept outside their house – until, it is said, the bikes were mown down by the defendant’s car, a collision which their witness claimed to have seen. The car’s insurers said that the claim was fraudulent and it was all a conspiracy. The judge agreed it was a fraud, whereas the Court of Appeal disagreed – but still disallowed the claim because, the CA said, the owners had not proved their case.

But the point of general interest arose because the judge decided that each claimant should give evidence in the absence of the other. And the CA said this was wrong. As I shall explain, I disagree. But let’s see where the Article 6 ECHR battle lines lie so you can come to your own view.

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