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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CA says ex-pats cannot say yes or no to Brexit

feb1957854b3b7ec1c58e7c35c4c4503_LSchindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 469  20 May 2016 – read judgment

Last month, I posted here on this challenge to the rule stopping long-time expatriates from voting on the Brexit proposals. The case went swiftly to the Court of Appeal, who, today, swiftly dismissed the expats’ appeal. 

The challengers said that the 15 year rule on voting was an unjustified restriction of the rights of freedom of movement under EU law, not least because if the UK were to leave the EU, they would end up without rights of abode in their current EU countries.

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Three way in the Supreme Court: PJS remains PJS

Humorous image of the bare feet of a man and two women in bed sticking out from under the bedclothes conceptual of a threesome, orgy, swingers or sexual cheating

PJS v. News Group Newspapers Ltd [2016] UKSC 26 – read judgment

The Supreme Court has this morning continued the interim injunction concerning PJS’s extra-marital goings-on until after the full trial of the claim – after a rollercoaster ride for his claim through the courts.

Cranston J refused an injunction on 15 January 2016.

The Court of Appeal granted it on 22 January (Matt Flinn’s post here), and then discharged it on 18 April due to the effect of subsequent publicity which they said had led the injunction to have no remaining purpose (my post here). The subsequent  publicity was in US newspapers and via the internet (with, as Lord Toulson commented, some fairly obvious twitter hashtags involved.)

The Supreme Court swiftly convened a hearing on 21 April, leading to today’s judgment reversing the Court of Appeal.

The decision (4-1) was not unanimous, with Lord Toulson dissenting. There are three concurring judgments (all agreed to by the majority).

 

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Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for

bank_MellatBank Mellat v HM Treasury [2016] EWCA Civ 452 1258, Court of Appeal, 10 May 2016: read judgment

Bank Mellat’s challenge to the Treasury’s direction under the Counter-Terrorism Act 2008  has been before the courts on a number of occasions. In 2009, the Treasury had concluded that the Bank had connections with Iran’s nuclear and ballistic missile programme. In 2013, the Supreme Court quashed the direction, which had stopped any institution in London from dealing with the Bank.

The Bank claims for damages caused by the unlawful direction. The claim is under the Human Rights Act via A1P1 of the ECHR, (the right to peaceful enjoyment of possessions).

Preliminary issues on damages came before Flaux J (judgment here, my post here). The Treasury appealed, with, as we shall see, some measure of success.

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Latest twist on standard of review in Aarhus cases

_88207153_treeR (o.t.a. Dilner) v. Sheffield City Council [2016] EWHC 945 (Admin), Gilbart J, 27 April 2016, read judgment

A quick note on the latest Aarhus Convention point to come before the domestic courts.

In November 2015, I posted on the decision by Ouseley J in McMorn here that a gamekeeper’s challenge fell within the scope of Aarhus, and that as a result there should be a more intense scrutiny of the underlying merits of the claim than would typically be allowed under domestic public law principles.

The current case bears on the standard of review point. Mr Dilner and other environmental campaigners challenged the tree-felling policies of Sheffield City Council, and one of his arguments was that tree-felling required an environmental assessment under the Environmental Impact Assessment Directive. This environmental claim fell within the protections conferred by the Aarhus Convention, and hence, it was said, required such an intense scrutiny. Mr Dilner relied upon Ouseley J’s reasoning.

Gilbart J robustly rejected the argument, and did not follow Ouseley J’s ruling.

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Ex-pats challenge to the EU referendum voting rules

feb1957854b3b7ec1c58e7c35c4c4503_LSchindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 957, Divisional Court 28 April 2016 – read judgment

An interesting, albeit unsuccessful, challenge to the rule which prohibits expatriates who were last registered to vote in the UK more than 15 years ago from voting in the forthcoming referendum on EU membership.

Mr Schindler (now 95) has lived in Italy since 1982, but has remained throughout a UK citizen. So is Ms MacLennan, who has worked in Brussels as an EU lawyer since 1987. Neither has dual nationality. They said that the 15 year rule is an unjustified restriction of the rights of freedom of movement under EU law. They pointed to the fact that if the UK leaves the EU, they would end up without rights of abode in their current countries, and thus they had a particular interest in the outcome of the referendum.

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The “up for a three-way?” case: injunction set aside

Humorous image of the bare feet of a man and two women in bed sticking out from under the bedclothes conceptual of a threesome, orgy, swingers or sexual cheating

PJS v. News Group Newspapers Ltd [2016] EWCA Civ 393 – read judgment

Matthew Flinn posted here recently on an earlier decision in this case, PJS (22 January 2016), in which the Court of Appeal granted an interim injunction banning revelation of PJS’s extra-marital ventures.

Yesterday’s judgment sets that injunction aside, solely on the basis that those escapades had now been so widely reported on the internet and in a US publication that it was less likely that PJS would get an injunction at any future trial of the claim.

This decision was reported in a somewhat partial way in today’s Times – “the death knell for celebrity privacy injunctions”. Things are not quite as simple as that. The injunction was only discharged because of the wide publication ground which the story had now received, not on the underlying merits of the privacy claims. But then The Times (proprietor NGN) was not necessarily going to give us a fully objective account of a case in which the Sun on Sunday (proprietor NGN) had secured this win.

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