By: David Hart KC
19 December 2014 by David Hart KC
British Dental Association v. General Dental Council [2014] UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED
Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.
The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.
Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.
As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.
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17 December 2014 by David Hart KC
R (o.t.a WATCH TOWER BIBLE & TRACT SOCIETY OF BRITAIN) v CHARITY COMMISSION, 12 December 2014, Dove J, no transcript yet available, summary on Lawtel (£)
Judicial review is an excellent and flexible remedy, filling the gaps when statutory and other appeals do not provide a remedy for unlawful administrative acts or omissions.
But there is a flip side, well exemplified by this extempore decision refusing permission for a judicial review – save in exceptional circumstances, you can only seek judicial review when there is no other available remedy.
In this case, Dove J decided that the Court had no jurisdiction to seek judicial review of the Charity Commission’s decision to launch an inquiry and make a production order concerning the Jehovah’s Witnesses charity because the Charities Act 2011 provided for appropriate statutory remedies that the charity should pursue first.
The summary gives only the shortest account of the underlying facts, but it appears as if there are two particular congregations of concern being investigated by the Charity Commission.
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11 December 2014 by David Hart KC
R (Haney and others) v. Secretary of State for Justice, 10 December 2014 – read judgment
Indeterminate sentences and the inadequate funding of rehabilitation during them has posed problems since Imprisonment for Public Protection (IPP) sentences hamstrung the system. The courts here and in Strasbourg have been in two minds what to do about cases where prisoners have not received the assistance they ought to have received – and hence are not, by domestic standards, ready for release.
Two solutions have been proposed to date. The House of Lords in R (James) [2009] UKHL 22 decided that this did not amount to a breach of Article 5 of the Convention. When James got to Strasbourg, the ECtHR (2013) 56 EHRR 12 disagreed; continued detention was unlawful.
The Supreme Court found a third way, as we shall see. Another example of our courts’ increasing confidence when confronted with a Strasbourg decision they think to be wrong.
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9 December 2014 by David Hart KC
Ali Samatar and others v. France, 4 December 2014, ECtHR, Fifth Section, read judgment
There is a good deal of froth about this case in the media, with little of it looking at what our pirates got their damages for. I also suspect that some of the hostility comes from elements who may not wish to trouble themselves with a judgment only in French. So let’s have a quick look at what the case was actually about.
The surrounding facts are terrifying but France’s liability to pay damages occurred for mundane reasons, as we shall see.
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4 December 2014 by David Hart KC
Hoon v. United Kingdom, 13 November 2014, ECtHR, read judgment
Most people’s political memories are short, but we may recall Geoff Hoon’s exquisite discomfiture when he was duped by a journalist, and then criticised by a Parliamentary Committee for his conduct in trying to drum up work. Still piqued, he complained of his treatment to Strasbourg, but, as we shall see, to no avail.
In February 2010, Hoon was an MP and a former Secretary of State for Defence. He had also taken up a voluntary position as one of twelve special advisors to the Secretary-General of NATO. He then announced he would not be contesting the May 2010 elections. He was contacted by Claire Webster on behalf of “Anderson Perry Associates”, an organisation that purported to be a “US communications company”. The company was looking to hire consultants who had an intimate and expert knowledge of government affairs.
Hoon was indeed interested.
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1 December 2014 by David Hart KC
Secretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014 – read judgment
Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.
Article 9 of the Aarhus Convention (to which the EU has subscribed) 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”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus – here -not least on how to pronounce it and how it fits into domestic law.
Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.
Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?
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25 November 2014 by David Hart KC
Islamic Investment Co v. Symphony Gems & Mehta, 19 November 2014, Hamblen J – judgment here
Hamblen J observed that “the facts…are so extraordinary that they could have come from one of A.P. Herbert’s “Misleading Cases”. Yes indeed. A solicitor decided to make up three years of litigation, writing some fake judgments, pretending to instruct barristers, and churning out fictitious correspondence.
Why? It is not clear from the judgment, though one or two clues are given.
The fraud surfaced in a long-running dispute between a claimant finance company seeking repayment of a loan, and the first defendant, diamond traders, and the second and third defendant guarantors. The defendants now owe the claimant $14m. The defendants do not want to pay $14m, and have taken every point in resisting the claimant’s attempts to secure its money – so much so that in October 2010 David Steel J decided that the second defendant, Mr Rajesh Mehta go to prison for his refusal to explain where his assets were, by activating a previously suspended committal order.
The current application was Mr Mehta’s application to set aside all adverse court orders. His reasons – my solicitor had acted against me, and was deliberately trying to prejudice me in my affairs in making up all this litigation.
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23 November 2014 by David Hart KC
Magna Carta Uncovered, Hart Publishing, October 2014 – details here
Two old friends, Lord Judge (former Lord Chief Justice) and Anthony Arlidge QC have written a compelling and scholarly account of the 1215 political settlement known as the Magna Carta. This instrument has become something of a missile in the dust-up over the European Convention versus “rights brought home”.
The authors have taken on the task of tracing the way in which the Magna Carta has played a part in political challenges since its inception, critically in 17th century clashes between King and Parliament (think the Five Knights and Ship Money cases and the 1689 Bill of Rights). And the Charter then formed the background for the US Bill of Rights and many constitutional settlements since.
Magna Carta (strictly the first Magna Carta, as others followed in 1216, 1217 and 1225, to similar effect) was “granted” by King John in June 1215. Initial negotiations about the monarch’s relationship with the Church concluded on 23 November 1214 (800 years today) within the Temple in London – our authors are past and current Treasurers of the Middle Temple. The “grant” was not really that. John had been forced to make peace with his rebel barons, and the liberties forced out of the king were unwillingly conferred.
We know or think we know what Magna Carta says. But this book strips off some of the varnish which later thinkers have imposed upon it.
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19 November 2014 by David Hart KC
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs , CJEU, 19 November 2014 – read C404-13
In May 2013, the UK Supreme Court (here) was sufficiently concerned about the UK’s lack of compliance with EU legislation, Directive 2008/50 (nitrogen dioxide etc in air) to refer various issues to the CJEU in Luxembourg.
The UK has been in breach of Article 13 the Directive since 1 January 2010, because 40 “zones and agglomerations” had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts. Defra admitted breach of Article 13 and, given the admission, the first instance judge and the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings. And those lower courts disagreed with ClientEarth’s interpretation of the Directive, which, as we shall see, has now for the first time been upheld by the CJEU.
The Supreme Court went rather further; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning of the Directive to the CJEU.
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14 November 2014 by David Hart KC
Sims v Dacorum Borough Council [2014] UKSC 63 – read judgment 12 November 2014 and
R (ota ZH and CN) v. LB Newham et al [2014] UKSC 62 – read judgment 12 November 2014
A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.
The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.
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7 November 2014 by David Hart KC
R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J read judgment
An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.
Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.
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5 November 2014 by David Hart KC
Bank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 – read judgment UPDATED POST
Fireworks here from Collins J in making sure that Bank Mellat got some disclosure of information in its fight to discharge a financial restriction order against it.
Bank Mellat is an Iranian bank, initially singled out by an 2009 order which prohibited anybody from dealing with it. The order was part of sanctions against Iran in respect of its nuclear and ballistic missiles programme. However, it bit the dust, thanks to the Supreme Court: see judgment. I did a post on that decision, and followed it up with one (here) on the (dis)proportionality arguments which led to the order’s downfall.
However the Bank was subject to two further orders, made in 2011 and 2012. They led to the freezing of €183m held by it in London. The 2012 order has since been revoked, but the 2011 one remains. This is the subject of the Bank’s application to set it aside. On any view, as Collins J recognised, it had caused very serious damage to the Bank’s business.
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4 November 2014 by David Hart KC
R (o.t.a. Badger Trust) v. SoS for Environment and Rural Affairs, CA, 29 October 2014, read judgment, on appeal from Kenneth Parker J, Admin Ct, 29 August 2014 read judgment
The Court of Appeal has dismissed an attempt by the Badger Trust to quash Defra’s unwillingness to retain an Independent Expert Panel on future badger culls. The arguments mirrored those before the judge (summarised in my previous post here), and were dismissed for pretty much the same reasons.
The background was the pilot cull in Somerset and Gloucester in 2013-14. It sought to remove at least 70% of the badger population in the area. The Panel reviewed its results, and concluded that in terms of effectiveness, shooting badgers removed less than 24.8% in Somerset and less than 37.1% in Gloucestershire. It decided that in terms of humaneness, something between 7.4% and 22.8% of badgers shot were still alive after 5 min. Not quite what had been promised for shooting.
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29 October 2014 by David Hart KC
Moseley R (ota) v. London Borough of Haringey [2014] UK 56 – read judgment
Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?
The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.
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25 October 2014 by David Hart KC
R (ota) Sir David Barclay and Sir Frederick Barclay v Secretary of State for Justice and Lord Chancellor, The Committee for the Affairs of Jersey and Guernsey and Her Majesty’s Privy Council [2014] UKSC 54 – read judgment
The Supreme Court has just ruled on a case which appeared before the Administrative Court on the judicial workings of Sark, and the power of the ruling body to alter the pay of the local judge (known as”Seneschal”). The Administrative Court had thought this was potentially open to arbitrary use and therefore incompatible with Article 6 of the Human Rights Convention – read judgment and Rosalind English’s post here.
But things took a different turn in the Supreme Court. For reasons unexplained, the Barclay brothers (who own these island just off Sark) dropped out of the case, and none of the remaining parties sought to uphold the judgment of the Administrative Court. The Article 6(1) point was not adjudicated upon, and the case became a constitutional one. The Channel Islands are not part of the UK, and have their own legislatures, though they act internationally by the UK Government.
In those circumstances – how should a UK Court go about reviewing the London approach to reviewing a measure put forward by an independent legislature?
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British Dental Association v. General Dental Council [2014] UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED
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