By: David Hart QC


The Environmental Law Foundation

8 August 2016 by

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

6 August 2016 by

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?

17 July 2016 by

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

23 May 2016 by

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

19 May 2016 by

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

11 May 2016 by

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

3 May 2016 by

_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

28 April 2016 by

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

19 April 2016 by

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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Watery rights and wrongs – and causation too

10 February 2016 by

TA-ArcticCharr-002R (o.t.a Seiont, Gwyfrai and Llyfni Anglers Society) v. Natural Resources Wales [2015] EWHC 3578, Hickinbottom J, 17 December 2015, read judgment and

Chetwynd v. Tunmore [2016] EWHC 156 (QB), HHJ Reddihough, sitting as a judge of the High Court, 4 February 2016, read judgment

This is a wintry double-bill on two recently decided cases about water quality, quantity, fish – and causation.

In the first, Seiont, Snowdonian anglers complained that the Welsh water regulator (Natural Resources Wales or NRW)  had misunderstood what was required by the Environmental Liability Directive in respect of Llyn Padarn, a freshwater lake the home of the Arctic charr, Salvelinus alpinus.  So they sought judicial review of NRW’s decision.

The main legal question was – did environmental damage within the Directive include slowing down recovery from previous damage, as the anglers argued, or was it confined to deterioration from an existing state (as the regulator had decided)?

Hickinbottom J held the latter, and the claim was dismissed.

In the second case, the claimant owners of fishing lakes in Norfolk said that their neighbours, in constructing rival lakes (without planning permission) had caused water levels to fall, and hence loss of fish and consequent income. Had that been established, the claimants would have had a claim for breach of statutory duty under section 48A Water Resources Act 1991. Such a claim, the judge held, would have been a strict liability one, in which foreseeability of damage played no part.

But the claimants lost on the facts, not before the judge had given an interesting analysis of the law of causation in this field.

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Gamekeeper’s environmental Aarhus claim to shoot buzzards?

14 November 2015 by

Buteo_buteo_-Netherlands-8McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

An interesting point arose in this judicial review (for which see Rosalind English’s post here). Could the claimant could get the benefit of an order that any costs he might have had to pay were capped at £5,000? The original judge, Thirlwall J, when granting permission, had refused this costs protection. Ouseley J granted it, though, because the claimant won, the order is academic (short of a successful appeal by the defendant). 

This kind of costs protection only applies when the claim is an environmental claim covered by the Aarhus Convention: see a whole list of posts at the end of this one, including the true bluffer’s guide here. The UK has been dragged kicking and screaming into compliance with the Aarhus costs requirements, that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.

But the domestic courts have had some difficulty in deciding what is or is not comes within an environmental challenge.

As we will see, the judge also thought that an Aarhus claim requires a more intensive review of the substantive decision than might have been applied had the claim been a typical domestic challenge on grounds of irrationality. I deal with that point first.

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Bank Mellat and disclosure in closed material proceedings

28 October 2015 by

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015  read judgment

Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it:  here, and my posts here and here.  

The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.

In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried.  Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.

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Western Sahara goes to Europe

23 October 2015 by

wsaharaR (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA [2015] EWHC 2898 (Admin) Blake J, 19 October 2015 read judgment

Not primarily about migration, but a case arising out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. For many years, the UN has recognised the Western Sahara as a non-self-governing territory which is entitled to exercise its right of self-determination. Morocco does not agree, and has done what occupying powers do, namely send in Moroccan nationals to flood the existing populations, add troops, and commit human rights abuses, according to evidence filed in the case. 

You may be wondering how this North-West African problem got to London’s Administrative Court. This is because the challenge is to two EU measures concerning Morocco. The first is a preferential tariff (administered by HMRC) applicable to imports from Morocco of goods originating from the Western Sahara. The second concerns the intended application of an EU-Morocco fisheries agreement about fishing in the territorial waters of Western Sahara.

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ECtHR judge ponders on EU/ECtHR dogfight, and recent trends of timidity in the ECtHR

6 October 2015 by

david_thor_bjorgvinssonA Political Decision Disguised as Legal Argument: Opinion of CJEU 2/13 – and other things

Over the summer an interesting article was published by Graham Butler, on his interview with David Thor Björgvinsson, former Icelandic judge in the European Court of Human Rights – see here.

One subject was the CJEU’s refusal to permit accession by the EU to the ECtHR (see my post here) – despite the EU’s commitment to accede via Article 6 of the Lisbon Treaty, in December 2009. A Draft Agreement on Accession was concluded in April 2013, but it required the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties – to which the CJEU gave a dusty answer in December 2014.

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Supreme Court: a right to a student loan?

3 August 2015 by

Supreme-Court-5-e1435307932368R (Tigere) v. Secretary of State for Business [2015] UKSC 57, 29 July 2015 read judgment here

Ms Tigere is 20.  She arrived in the UK from Zambia when she was 6. She did very well at school. In 2013, she applied for a student loan to fund a university place.

The current English system does not allow her to apply for a loan, because of her immigration status. In particular, she did not

(1) have Indefinite Leave to Remain  (ILR) here (and so did not comply with the “settlement rule”), and

(2) have three years of “lawful” ordinary residence here (so did not comply with “the residence rule”).

In a very close run thing, the Supreme Court decided that the application of the settlement rule was incompatible with her Convention rights, under Article 2 of the First Protocol and/or Article 14. By contrast, the residence rule was not incompatible with her rights.

The result was 3-2, and Lord Hughes (of the majority) disagreed with important elements of the reasoning of Lady Hale and Lord Kerr who found for Ms Tigere.

The case is a perfect example of the difficulties of deciding human rights cases in the context of social benefits, as we shall see.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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