Media By: David Hart QC


Supreme Court: state immunity rules incompatible with Article 6

20 October 2017 by

Benkharbouche & Anor v Foreign & Commonwealth Office  [2017] UKSC 62, 18 October 2017  – read judgment

If you work for an embassy in London and are not a UK national, you cannot sue your employing state when you get unfairly dismissed. But if you enter a commercial contract with the same embassy, you can sue them.

This is the conundrum which faced the Supreme Court, who decided that the former result, although laid down by statute, was incompatible with Article 6 of the ECHR.

The SC’s sole judgment was by Lord Sumption, with whom the other justices agreed. It is a tour de force of international (rather than human rights) law, because therein lay the key issue.

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The biter bit – EU does NOT like being criticised by Aarhus body

23 September 2017 by


ACCC Findings in ACCC/C/2008/32

Last week’s post concerned the judicial review costs system in environmental cases and its compliance with the prohibitively expensive rule Art.9(4) of the Aarhus Convention. 

Now for some more Aarhus developments which happened over the summer, this time involving the Aarhus Convention Compliance Committee (ACCC) having a pop at the narrow EU standing rules applicable to challenges to an act or omission by a EU body, and the EU not liking those findings at all.

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Aarhus costs cap challenge succeeds

16 September 2017 by

RSPB, Friends of the Earth & Client Earth v. Secretary of State for Justice [2017] EWHC 2309 (Admin), 15 September 2017, Dove J – judgment here

In my March 2017 post here, I explained that amendments to the costs rules for public law environmental claims threatened to undo much of the certainty that those rules had achieved since 2013. Between 2013 and February 2017, if you, an individual, had an environmental judicial review, then you could pretty much guarantee that your liability to the other side’s costs would be capped at £5,000 (£10,000 for companies) if you lost, and your recovery of your own costs would be limited to £35,000 if you won. In this way, the rules sought to avoid the cost of such claims becoming prohibitively expensive and thus in breach of Art.9(4) of the Aarhus Convention.

The most worrying element in the February 2017 amendments was a new CPR 45.44  giving the courts a broad discretion to vary those amounts, apparently at any time. This seemed like an open invitation to the defendants to try to do this, aided by the financial information which claimants are now obliged to provide. It was truly regressive, taking us back to the days when you spent many thousands of pounds arguing about a protective costs order which was intended to save money.

In my March post, I explained that the new rules were being challenged by NGOs, and Friday’s judgment is the upshot of this challenge.

It is essentially a success for the NGOs.

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Jackson LJ on costs in all judicial reviews: Aarhus rules to apply

31 July 2017 by

 

Review of Fixed Recoverable Costs: Supplemental Report, 31 July 2017 – here

Jackson LJ is still toiling away at costs issues some 8 years after his main report. The original report changed the whole way in which the civil courts go about working how much, if anything, is due from one side to another at the end of a case – budgets being one key element. The main part of this new report concerns extending fixed costs further.

This post is about something different, judicial review. Rather different factors may come into play when you are challenging public authorities. You may have a direct financial or other interest in the outcome, or you may just think that the law needs properly enforcing against those authorities. It does not follow that the winner should recover costs on the same rules as elsewhere in the civil system. And Jackson LJ returns to the question of costs in this context in Chapter 10 of his report.

Since 2013, things have been different in the area of environmental judicial reviews. With substantial prods from the EU, things are now better off for claimants, though recent reforms have sought to put further obstacles in the way of claimants: see my post here.

So it is refreshing to read something from a very senior judge which recognises the true value of judicial review as a whole and why the costs rules need adjusting in this area for the benefit of claimants.

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The clash between open justice and one’s good name

20 July 2017 by

Khuja (formerly known as PNM) v. Times Newspapers [2017] UKSC 49, Supreme Court, read judgment

The outcome of this case is summed up in its title, an unsuccessful attempt to retain anonymity in press reporting.  It is a stark instance of how someone involved in investigations into very serious offences cannot suppress any allegations which may have surfaced in open court, even though no prosecution was ever brought against them.

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Enforcement of environmental law: what is not in the Brexit Bill

20 July 2017 by

I posted recently on the European Union (Withdrawal) Bill and its approach to rolling over EU-derived laws into our domestic law. But a law is only as good as its enforcement makes it, and so we all need to think how this is going to be done post-Brexit. 

NB: there is nothing in the Bill which touches on enforcement; that is for later, if at all.

The issue arises particularly starkly in the environmental field, where there are not so many players with direct legal and commercial interests around (as in, say, equal pay or competition law) to seek consistent enforcement.

A task force within the UK Environmental Law Association (chaired by Professor Richard Macrory and Andrew Bryce, left and right in the pic) has been applying its mind to this enforcement problem, and on 18 July 2017  published a short and powerful report on the issue – Brexit and Environment Law. Its main messages are these.

 

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Information law: when something is “on” an environmental measure

30 June 2017 by

Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment

As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.

The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.

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No bans on local authority disinvestment decisions

25 June 2017 by

R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government [2017] EWHC 1502 (Admin) 22 June 2017, Sir Ross Cranston – read judgment

Many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views.

Hence the significance of this challenge to some statutory guidance which sought to ban some of those pension decisions but to permit others. The context was local government employees (5 million current or former employees). It arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs.

The key bit of the impugned guidance was that those running local authority pensions must not use their policies to

pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”;

or

“pursue policies that are contrary to UK foreign policy or UK defence policy”.

The main issue in this challenge was whether these prohibitions went beyond the SoS’s powers under the relevant pension provisions.

No prizes for guessing why the Palestine Solidarity Campaign (in conjunction with War on Want and the Quakers) supported this challenge. The fact that the domestic arms trade got a special unbannability status would provoke many to go to law.

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Strasbourg on excessive libel damages

19 June 2017 by

Independent Newspapers (Ireland) Ltd v. Ireland     ECtHR, 5th section, 15 June 2017 – read judgment here

The Strasbourg Court has decided that an award of damages in an Irish libel case was disproportionate – but, as I shall explain – it has not told us what a proportionate award would have been.

This odd position was reached in an application by a newspaper group against the Irish state. It was triggered by a massive jury award (1.872m euros) for what by all accounts was a deeply unpleasant libellous campaign by the paper. But the immediate cause of the litigation arose from an appeal to the Irish Supreme Court, who, by a majority, would have reduced the award to 1.25m euros. 

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Strasbourg grants emergency hearing in Charlie Gard appeal

10 June 2017 by

Yates v United Kingdom – here

Update: On 19 June the parents lodged a substantive application with the Strasbourg Court. 

In my last post on this case, I explained that the Supreme Court had granted a short stay to 5pm Friday 9th June to enable the parents to ask the Strasbourg Court to intervene. So far, the courts have ruled in favour of Great Ormond Street’s application to withdraw artificial ventilation from Charlie.

Shortly after my post, on Friday 9 June, the ECtHR ordered an emergency hearing. To that end, it requested the UK to keep Charlie alive until the end of 13 June.

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Charlie Gard: Supreme Court turns down appeal, now all depends on Strasbourg

9 June 2017 by

Yates and Anor v Great Ormond Street for Children 

Earlier this week, Rosalind English posted on the Court of Appeal’s decision here. The case was heard by the Supreme Court during the afternoon of 8 June, but the SC agreed with the courts below that the Hospital was entitled to withdraw artificial ventilation. 

Lady Hale gave a short explanation of her reasons: see here and my summary below.

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What can reasonably be expected of junior doctors

22 May 2017 by

FB v. Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, 12 May 2017, Court of Appeal – read judgment

All the advocates in this case were from 1 Crown Office Row, Elizabeth-Anne Gumbel QC for the claimant/appellant FB, and John Whitting QC and Alasdair Henderson for the hospital. None of them were involved in the writing of this post.

FB fell ill with meningitis when she was just one. The illness was diagnosed too late, and she suffered brain damage. This appeal was against the judge’s dismissal of the claim against the hospital, where she was seen, some time before she was admitted and the infection treated. All agreed that avoiding the time between being seen and being admitted would have led to the brain damage being avoided. 

But should the junior doctor have picked up enough about her condition to admit her?

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Purdah: Government should obey the law in the run-up to an election

16 May 2017 by

NO2_Pic

R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here

Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough.  The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.

The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.

The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.

But the only justification for the delay was Purdah.

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Supreme and Strasbourg Courts square off on Art. 6 and housing

10 May 2017 by

Poshteh v Royal Borough of Kensington & Chelsea S [2017] UKSC 36, 10 May 2017 – read judgment 

For the last 15 years, whether the right of the homeless to suitable council accommodation is an Art.6(1) ECHR civil right has been argued over in the courts.  And the question arose again in today’s judgment of the Supreme Court.

Ms Poshteh had been imprisoned and tortured in Iran, and asked her local council in London to house her as she was homeless in the UK. She then rejected the offer of a flat because she said its windows reminded her of those in her Iranian prison cell. This rejection was held fatal to her housing claim, as we shall see.

To understand the Art.6 point, we need to have a quick look at the council’s housing duties for the homeless.

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