By: David Hart KC

HS2 challenges fail but powerful dissent

26 July 2013 by David Hart KC

R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

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Transforming Strasbourg’s A1P1 right to property?

20 July 2013 by David Hart KC

“Transforming the right to property” is the title of an interesting and controversial recent post (17 July 2013) on the Strasbourg Observers blog by Laurens Lavrysen.  He declares his position up front: 

“Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons.”

These reasons can be summarised as (i) the right assumes the current distribution of wealth, and thus protects that status quo; (ii) the right can amount itself to a violation of other human rights – slavery being the most egregious example, though Lavrysen asserts more controversially the fact that intellectual property rights may restrict access to medicines affecting the right to health (iii) the right does not distinguish between the types of property its protects

thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht.

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Permission to amend after expiry of time limits – and an unfair hearing

18 July 2013 by David Hart KC

Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, Court of Appeal, 18 June 2013 – read judgment

There is a curious if not bizarre set of anomalies about planning and environmental challenges. Where they involve an attack on a decision by the Secretary of State (typically in respect of a decision by a planning inspector after inquiry), the route is via section 288 of the Town & Country Planning Act 1990. There is a strict 6 week time limit, with no discretion to extend – but no need for permission to apply as in judicial review. But where there is a challenge to any other decision, the time limit (at the moment) is 3 months, with discretion to extend – but also a discretion to disallow if the application was not “prompt” even within the 3 months  (see my post on this last point) and the permission hurdle to clear.

Yet in each case the substantive grounds are effectively the same – but to what extent should procedures differ other than those required by the statutory underpinning?

The conundrum in this case was – what to do about a set of grounds (drafted by lawyers)  filed after the s.288 time limit, in substitution for grounds (by the clients doing it themselves) filed within the 6 weeks.

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Sea fishing, quotas and A1P1: “no-one owns the sea”

11 July 2013 by David Hart KC

The UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J,  10 July 2013  read judgment 

Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length –  Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.

The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.

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So we cannot see Prince Charles’ advocacy letters after all

9 July 2013 by David Hart KC

R (o.t.a Rob Evans) v. Attorney-General,  Information Commissioner Interested Party, 9 July 2013 – read judgment

As we all know, the Prince of Wales has his own opinions. And he has shared those opinions with various government departments. Our claimant, a Guardian journalist, thought it would be interesting and important for the rest of us to see those opinions. So he made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents.

No joy, says the Administrative Court. Yes, a tribunal had ordered production of the letters, but that order had been overridden by the Attorney-General. What, says anybody used to the idea that courts do their bit, and the government does its bit – that’s unfair, government cannot override what the courts say.

The complication, as we shall see, is that the override is built into FOIA.

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Public interest environmental litigation in Strasbourg

7 July 2013 by David Hart KC

Public Interest Environmental Litigation and the European Court of Human Rights: No love at first sight, by Riccardo Pavoni – read article 

Thanks to this link on the ECHR blog, a fascinating account of the twists and turns of Strasbourg environmental case law from Professor Pavoni, of the University of Siena. It is 30 closely-argued pages, so I shall try and give a flavour of the debates Pavoni covers, as well as chucking in my own penn’orth. 

The starting point, as I see it, is that public interest environmental litigation is a square peg in the round hole of Strasbourg case law. The Convention and the case law are concerned with victims of human rights abuses. Environmental degradation affects everyone, but not necessarily in a way which makes them a a Strasbourg victim. Take loss of biodiversity, say the decline in UK songbirds, or the peace of a remote moorland affected by 150m high wind turbines. Who is the potential victim in those cases when judged by human rights? Pavoni argues that if the Strasbourg Court were to assert jurisdiction over environmental cases as a common good, alongside adverse impacts on private victims, this would not result in a major overhaul of the Court’s current principles – not too much expansion of the hole needed to fit the square peg in snugly. How does he reach that position?

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Brain-damaged claimant fails in Article 8 claim against Council

2 July 2013 by David Hart KC

Bedford v. Bedfordshire County Council, 21 June 2013, Jay J – read judgment

On 29 May 2004, Bradley Bedford, then aged 13, was beaten senseless by one AH, then 15, whom he had the misfortune to encounter entirely by chance near the seaside in Torbay. AH was in a children’s home there which was contracted to the Defendant Council; AH was a “looked after” child under section 20 of the Children Act 1989. Bradley sued the Council for failing to protect him. His claim was limited to one under the Human Rights Act, and Article 8 ECHR in particular.

Jay J dismissed the claim on the grounds that (a) it was brought too late; (b) there was not a real and immediate risk of harm to Bradley of which the Council should have been aware; (c) even if there was, the local authority took reasonable steps to eliminate or substantially reduce any risk. All these rulings are of some interest.

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A1P1 and property rights in the Supreme Court again

25 June 2013 by David Hart KC

Cusack v. London Borough of Harrow  [2013] UKSC, 19 June 2013 read judgment 

This is the tale of how a solicitor from Harrow ended up litigating about his off-street parking in the Supreme Court – and reached for Article 1 of Protocol 1 (A1P1) of ECHR, by way of a second string to his bow. Not his choice, as he had won in the Court of Appeal on other grounds. But his failure on the point reminds us that in the majority of cases A1P1 is a difficult argument to bring home.

Mr Cusack had been parking his car in front of his premises since the late 1960s. He got temporary planning permission for his offices in 1973, but hung on when this expired and got established planning rights in 1976.

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An ABC on proportionality – with Bank Mellat as our primer

22 June 2013 by David Hart KC

Bank Mellat v HM Treasury [2013] UKSC 39 (see judgment)

My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” [20]) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.

So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.

The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at [68] – [76] distils the main elements.

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Supreme Court – Measures against Iranian bank unlawful, and the secret hearing ruling

19 June 2013 by David Hart KC

Bank Mellat v HM Treasury [2013] UKSC 38 (CMP: see judgment) and 39 (main: see judgment)

Two sets of judgments today from a 9-judge Supreme Court in the Bank Mellat case. The first explains why the Court adopted a secret procedure in the absence of the Bank (i.e. a Closed Material Procedure) but added that the whole palaver in fact added nothing to their knowledge. The second concludes that financial restrictions imposed in 2009 on an Iranian Bank which effectively excluded it from the UK financial market were arbitrary and irrational and were also procedurally unfair. 

Costs budgets – now with sharp teeth. If you want more than your budget, apply.

17 June 2013 by David Hart KC

Elvanite Full Circle v. AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), Coulson J read judgment

The Jackson reforms, which are designed to stop lawyers spending too much of their clients’ or their opponents’ money, are still but young, and therefore not yielding much in the way of decided cases. But there were some pilot schemes which are very similar, and this case about one such scheme (in the Technology & Construction Court) is an interesting, and tough, example of why costs budgets must be taken seriously.

Elvanite claimed that AMEC had given them negligent planning advice about waste management. Coulson J dismissed the claim. AMEC sought and got their costs. But, from the judge’s judgment on costs, it seems unlikely that they will recover more than 50% of their actual costs. Why?

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The right to be on the beach again – A1P1 and retrospectivity

16 June 2013 by David Hart KC

The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council (Interested Party)  [2013] EWCA Civ 673, 276, 14 June 2013 read judgment 

This case came before the Court of Appeal earlier this year (read judgment of April 2013, and Rosalind English’s earlier post giving the background), when the landowner Port’s attempts to exclude members of the public from West Beach, Newhaven were unsuccessful. They were defeated by the beach being registered as a “village green” – improbable though that description may sound to those not versed in this arcane bit of the law. The lawfulness of this registration in turn depended on it being established that members of the public had used the beach for at least 20 years “as of right” – i.e. “without force, without stealth and without permission” – an age-old lawyers’ mantra that has mercifully been translated from the original Latin in recent times.

But the earlier hearing before the CA left over for determination one issue, the Port’s contention that they had been deprived of property rights in breach of Article 1 of Protocol 1 (A1P1) of ECHR, because of a retrospective change of the law adverse to them. This is what last week’s decision is about.

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Freedom of information and unpublished data from a randomised controlled trial on ME/CFS

12 June 2013 by David Hart KC

Queen Mary University of London v the Information Commissioner (1) and Robert Courtney (2) First Tier Tribunal EA/2012/0229 read judgment

Rosalind English has recently posted here on incomplete academic work in the climate change field. This appeal is closely related, in that it concerns a university’s claim to hold on to data from a publicly-funded randomised controlled trial pending peer-reviewed publication.

Between 2005 and 2010 Queen Mary ran a trial into the efficacy and safety of the current treatments for Chronic Fatigue Syndrome/Myalgic Encephalopathy, namely Adaptive Pacing Therapy , Cognitive Behaviour Therapy and Graded Exercise Therapy. £5m of public money was spent, and the perceived benefits (and some of the detriments) were written up into a major article published in the Lancet in March 2011. The upshot, said this article, was that CBT and GET could be safely added to current medical care with a moderate improvement in outcomes. This recommendation has already fed into an interim review of the NICE guidelines on CFS/ME.

However, the data on deterioration within the trial had not been fully published. You could not see how many patients deteriorated in response to each therapy, just the net deterioration over the whole cohort. Our appellant, Mr Courtney, is evidently a bit sceptical about the results of this trial. As he pointed out, the deterioration data had a 20 point difference, whereas the improvement had only to be modest – an 8 point difference. And, he said, how can patients sensibly form a view on treatment without knowing how much deterioration that specific treatment might cause?

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The Chagossian Wikileaks cable judgment, fishing rights and a dose of EU law

11 June 2013 by David Hart KC

Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 11 June 2013 read judgment

The Divisional Court has now dismissed  the claim by Mr Bancoult on behalf of the Chagossian islanders. He had challenged the designation of the waters around the islands as a “no take” Marine Protected Area, i.e. one which could not be fished. 

Mr Bancoult said that the decision was flawed (i) by having an improper purpose (it would put paid to the Chagossians’ claims for resettlement); (ii) by inadequate consultation and (iii) by amounting to a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.

The case has, to say the least, quite a back-story. It started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s,  on which I have posted here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the Foreign Office accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

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Electronic plagiarism? The dangers of the cut-and-paste

26 May 2013 by David Hart KC

Crinion v. IG Markets [2013] EWCA (Civ) 587  read judgment

and R (o.t.a. Mustafa) v. The Office of the Independent Adjudicator, Queen Mary College Interested Party [2013] EWHC 1379 (Admin) read judgment

A judge hears a case and accepts one party’s version. That party provides a convincing closing speech (in a Word document) which the judge lifts, makes some modifications, and circulates as his judgment. 

What is wrong with that? Put it another way, does the judge have to re-invent the wheel by paraphrasing the arguments of the parties?

What is wrong is the appearance that the judge has not really engaged with the arguments of the losing party – as the Court of Appeal emphatically pointed out in their judgment.

My second case reminds us what happens when students do this.

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