By: David Hart KC
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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12 October 2014 by David Hart KC
United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust [2014] EWCA 1271 (Civ) – read judgment
Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant challenge is not an easy task. Three connected problems commonly arise:
(1) did the public body provide adequate information to enable properly informed consultation
(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?
(3) did the consultation encompass sufficient alternatives?
In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).
The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.
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6 October 2014 by David Hart KC
Hansen v. Norway, ECtHR, 2 October, read judgment
In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.
You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.
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5 October 2014 by David Hart KC
Church of Scientology v. Russia, ECtHR, 2 October 2014 – read judgment
Amidst all the current posturing about the Strasbourg Court and how we would like to ignore its judgments we don’t like in future, one cannot help thinking about the old rule of behaviour that your enemy’s enemy is your friend. Western interests have been caught out, time and time again, when they intervene/interfere (insert, as appropriate) in the Middle East, and their enemy’s friend often turns out to be far from its friend.
Cue this case. Scientologists may not be widely favoured, in the UK, but then neither is Russia. And Russia would so love to ignore the slew of Strasbourg judgments against it – think Kordokovsky (€1.6bn, here), Chechnya and the environmental claims (here) against the various businesses which had so seamlessly ended up in the oligarchs’ pockets. But do we really want to feed Putin a line to get out of his difficulties in Strasbourg? This week’s back of an envelope announcements from the Conservative party conference about Strasbourg decisions would appear to do so.
The trigger for this claim in Strasbourg by the Church was the Russian courts’ decision that they were unwilling to allow the Scientologists to register their operations as a legal entity. And, as we shall see, Strasbourg thought that was not on.
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29 August 2014 by David Hart KC
R (o.t.a. Badger Trust) v. SoS for Environment and Rural Affairs, Kenneth Parker J, Admin Ct, 29 August 2014 read judgement
This blog has covered the various twists and turns, both scientific and legal, of Defra’s attempts to reduce bovine TB by culling badgers: see the list of posts below. Today’s decision in the Administrative Court is the most recent.
You may remember a pilot cull in Somerset and Gloucester took place in 2013-14. Its target was to remove at least 70% of the badger population. By that standard, it failed massively. In March 2014, an Independent Expert Panel (IEP) concluded that in terms of effectiveness, shooting badgers removed less than 24.8% in Somerset and less than 37.1% in Gloucestershire. As for humaneness, something between 7.4% and 22.8% of badgers shot were still alive after 5 min – so the clean instant death much vaunted prior to the cull was by no means universal.
The current case concerned the future of the IEP in proposed “pilot” culls. The Badger Trust challenged Defra’s decision to extend culling elsewhere without keeping the IEP in place, and without further conclusions from the IEP to be taken into account on effectiveness and humaneness.
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12 August 2014 by David Hart KC
JSC BTA Bank v. Ablyazov et al 8 August 2014, Popplewell J, read judgment
What you say to your lawyers is truly confidential; no-one, not even a regulator or prosecutor can see it. This is protected by the right to privacy under Article 8, and the right to a fair trial under Article 6 (which includes the right to access to lawyers).
Well, that is the general rule. And this case reminds us that there is an exception to this – when the relationship between client and lawyer is affected by “iniquity”.
As we will see, Mr Ablyazov fell foul of this exception, and papers which he sent to his various solicitors have been ordered to be produced. As we will also see, he appears to be a very bad boy indeed. It is however more difficult to draw the line between his sort of case and that in which a defendant says he has a defence, though in the end is disbelieved by the court.
And one interesting aspect of this judgement is Popplewell J’s clear explanation of this difference – a fine line indeed.
So now to Mr Ablyazov, and his badness.
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7 August 2014 by David Hart KC
Oao Neftyanay Kopaniya Yukos v Russia 31 July 2014 read this damages judgment and read violation judgment
A good week, to say the least, for Mikhail Kordokovsky, recently released from a Russian jail. A complex story of punitive tax assessments on his former company, Yukos, has led to a judgement of €1.866 bn in Strasbourg against Russia.
I shall concentrate on the Strasbourg case, although for sheer numbers the story is perhaps elsewhere; on 28 July 2014 shareholders had obtained awards from the Permanent Court of Arbitration in The Hague ordering Russia to pay $51.57 bn to shareholders in Yukos Oil, saying officials had manipulated the legal system to bankrupt the company.
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27 July 2014 by David Hart KC
DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 2493 (QB), Green J – read judgment
This is an important summary of the principles applicable to HR damages, particularly in circumstances where there have been other payments already made arguably in respect of the acts in question. So it should be first port of call if you have an HR damages problem, not least because it gathers all the learning together.
Green J decided in March 2014 that the police had a duty to conduct investigations into particularly severe violent acts in timely and efficient manner, and that there had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so-called “black cab rapist”, one John Worboys. This amounted to a breach of the of the victims’ rights under Article 3 of the ECHR. See Rosalind English’s post on the liability judgment here
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23 July 2014 by David Hart KC
Coventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment
Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases. Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.
Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small” local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.
Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.
In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).
So each case is about a costs burden, which is capable of causing injustice to one or other party.
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20 July 2014 by David Hart KC
O (R o.t.a) v. Secretary of State for International Development [2014] EWHC 2371 (QB) 14 July 2014 read judgment
One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.
The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.
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15 July 2014 by David Hart KC
Public Law Project v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary
Angela Patrick of JUSTICE has provided an excellent summary of this important ruling, which declared a proposed statutory instrument to be ultra vires the LASPO Act under which it was to have been made. The judgment is an interesting one, not least for some judicial fireworks in response to the Lord Chancellor’s recourse to the Daily Telegraph after the hearing, but before judgment was delivered.
But more of that after some thoughts on the discrimination ruling.
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13 July 2014 by David Hart KC
Breyer Group plc and others v Department of Energy and Climate Change [2014] EWHC 2257 (QB) – Coulson J read judgment
This is an important judgment on governmental liability for a rather shabby retrospective change of the rules about subsidies for photovoltaic schemes. The Court of Appeal had decided in 2012 that the changes were unlawful: see judgment and my post here. The question in Breyer was whether businesses could obtain damages under A1P1 arising out of the Secretary of State’s decision. Though the judgment proceeds on a number of assumed facts, some critical findings of law were in favour of the businesses.
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18 June 2014 by David Hart KC
R v Ahmad and others [2014] UKSC 36, 18 June 2014 – read judgment
A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.
The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud. A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.
In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.
In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.
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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
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