In Episode 183 Lucy McCann speaks to Cara Guthrie and Matthew Flinn of 1 Crown Office Row about multi-defendant litigation in the field of clinical negligence. The discussion covers, who to sue, the costs implications of having multiple defendants, contribution proceedings, apportioning liability between defendants, and interim payment applications.
In episode 180 of Law Pod UK, Lucy McCann speaks to Dr Stefan Theil, the John Thornley Fellow and Director of Studies in Law at Sidney Sussex College, University of Cambridge, about what role the law can play in tackling the climate crisis. Dr Theil discusses the framework and central argument in his recent book ‘Towards the Environmental Minimum’ (Cambridge University Press, 2021). In the episode Dr Theil argues for an incremental human rights-based approach to combat the climate crisis and environmental degradation, and explores the extent to which courts are well placed to adjudicate on environmental issues. The discussion covers the concept of polycentricity, protections offered by domestic constitutions and the value of ascribing rights beyond human beings.
Restricting the liberty of a child is a serious step only to be taken in the most difficult of circumstances. Children may require secure accommodation by the Local Authority in a variety of circumstances. A child could require urgent mental health treatment in a secure hospital. A child may require strict supervision with a high staff to child ratio, in order to protect them from harm and meet their complex needs. Applications are made where a child poses a significant risk of harm to themselves or others. Applications for secure accommodation or deprivation of liberty orders have increased significantly in recent years. There is now a severe lack of regulated accommodation, and the courts are having to use their inherent jurisdiction to approve DOLS regimes where unregulated placements are the only option.
In Episode 179 of Law Pod UK Lucy McCann speaks to Richard Ager and Clare Ciborowska who examine the current situation and, in particular, consider the case of Re X (Secure Accommodation: Lack of Provision)  EWHC 129 (Fam) in which Sir Andrew McFarlane, President of the Family Division of the High Court, gave a scathing Judgment on the provision of secure accommodation to children in England & Wales. The episode also explores the recent decision of Manchester City Council v P ( EWHC 133 (Fam) which considered whether restrictions placed on a child in respect of mobile phone/internet use amounted to a deprivation of liberty.
The episode discusses the new national deprivation of liberty court. The Nuffield Family Justice Observatory recently published this report, analysing the first two months of applications to the national deprivation of liberty court.
The landmark decision handed down on 6 July 2022 by a majority of 3 to 2 in the Supreme Court held that a serving diplomat does not enjoy immunity in an employment tribunal claim grounded in allegations of modern slavery.
Attorney General for Bermuda v Roderick Ferguson & Ors (Bermuda)  UKPC 5 — Judgment here, links to hearings here.
Chantelle Day & Anor v The Governor of the Cayman Islands & Anor (Cayman Islands)  UKPC 6 –Judgment here, links to hearings here.
The Bermuda Case
In the Bermuda case, the Attorney General of Bermuda appealed the decision of the Court of Appeal for Bermuda (decision here), which found in favour of the Respondents: a gay Bermudian, OUTBermuda (a Bermudian LGBTQ charity), a lesbian Bermudian, and three Bermudians associated with Bermudian churches, holding that s.53 of the Domestic Partnership Act 2018 (“the DPA”) of Bermuda, which confines marriage to a union between a man and a woman, was invalid under the Bermudian Constitution (“the Constitution”).
Lord Hodge and Lady Arden (Lord Reed and Dame Victoria Sharp agreeing) gave the judgment of the Board, allowing the appeal of the Attorney General. Lord Sales gave a dissenting judgment.
Same-sex marriage is highly controversial in Bermuda. The political backdrop to this case is outlined at [25-30]. Importantly, following a general election in 2017 the Progressive Labour Party introduced the Domestic Partnership Bill, which was subsequently passed, in an attempt to reach a viable compromise on the issue of same-sex marriage. The DPA provides for legally recognised domestic partnerships between any two adults, but s.53 confines marriage to a union between a man and a woman.
The Legislature in Bermuda is bound by the Constitution, summarised at [7-9]. Chapter 1 of the Constitution sets out fundamental rights and freedoms. The Constitution does not confer a right to marry. Section 8 provides for the protection of freedom of conscience:
no person shall be hindered in the enjoyment of his freedom of conscience…the said freedom includes freedom, either alone or in the community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.
Although Bermuda is not in Europe, the European Convention on Human Rights (“the Convention”) applies to Bermuda as a matter of international law through declarations made by the UK pursuant to the Convention (when it was responsible for Bermudian foreign policy) and subsequently permanently renewed after Bermuda became independent. Although it does not apply in domestic Bermudian law, as one of the “antecedents” to the Constitution, it is relevant to the interpretation of constitutional rights [10-21].
In a judgment handed down on 4 February 2022, the Court of Appeal dismissed an appeal for permission to apply for judicial review concerning the lawfulness of the England Infected Blood Support Scheme (EIBSS) (the “Scheme”). The Court of Appeal concluded that the Scheme’s exclusion of those infected with hepatitis B was not discriminatory. In any event, the Secretary of State’s justification for who was to be compensated under the ex gratia Scheme was to be given a wide margin of appreciation by the courts.
The Appellant, CN, suffers from hepatitis B virus (“HBV”) which he alleges he contracted when given blood transfusions on or after 14 April 1989. Consequently, CN has suffered from serious health problems, and was forced to abandon his business to receive medical treatment; he has been reliant on state benefits for the last 13 years. CN is a core participant in the ongoing infected blood inquiry, which was established to examine the circumstances in which NHS patients in the UK were given infected blood and blood products (read more about the Inquiry here).
In 1995, CN issued a civil claim against the NHS and the National Blood Authority (now the NHS Blood and Transplant Service). Despite obtaining expert evidence to the effect that his infection was obtained from infected blood, he had to discontinue his claim when legal aid was withdrawn.
Infected blood and the England Infected Blood Support Scheme (EIBSS)
The Scheme was set up on 1 November 2017, to provide ex gratia support to people historically infected with hepatitis C virus (“HCV”) and/or human immunodeficiency virus (“HIV”). Specifically, the 2017 Directions set out the EIBSS’s purpose as:
a scheme to make payments and provide support in respect of individuals infected with HIV or Hepatitis C (or both) from blood or blood products used by the NHS and to provide support to family members of such individuals.
The Scheme addresses the ongoing social issues concerning those infected and affected by HIV and HCV from unscreened products. The Scheme recognises a moral imperative to compensate those infected with HCV and HIV in circumstances where attempts to allege negligence against the NHS would run into significant difficulties of fault-based liability and evidential issues surrounding the state of scientific knowledge at the time. It also helps families and partners after the death of someone infected, who would otherwise be unable to make a civil claim.
Those infected with HBV do not fall within the remit of the Scheme. In basic terms, this is because the NHS screened blood and blood products for HBV from the mid 1970s, so the number of patients infected with HBV were low after screening. Within the Scheme, the cut-off date for HCV claims is September 1991, when screening was introduced. For HIV there is no cut-off, but the eligibility criteria make clear that after October 1985, when the NHS screened for HIV, it was very unlikely that HIV would be transmitted through infected blood.
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