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Yesterday (Tuesday 9th of April) the European Court of Human Rights in Strasbourg handed down three judgments from the Grand Chamber. Two of the applications were rejected on admissibility grounds. The third, a representative action by an NGO against the Swiss government, succeeded. It has caused something of a stir, to say the least.
The Strasbourg Court has broken new ground in finding that Switzerland has breached Article 8 of the ECHR, a provision which was drafted to protect the right to private and family life. In the case of Verein Klimaseniorinnen Schweiz and others v Switzerland, 16 of the 17 member panel concluded that Article 8 encompasses a right to effective protection by the state authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.
The case of Duarte Agostinho and five others v Portugal and 32 other states was one of the applications considered by the Grand Chamber. Emma Louise Fenelon advised Save the Children in its third party intervention in this case.
Michael John Smith (appellant) v Fronterra Co-operative group Ltd and others [2024] NZSC 5
This appeal to the New Zealand Supreme Court concerned strike out of a claim in tort (comprised of three causes of action) relating to damage caused by climate change. The question was whether the plaintiff’s claim should be allowed to proceed to trial, or whether, regardless of what might be proved at trial, it is bound to fail and should be struck out now.
The implications of this ruling could be enormous, particularly if the English courts decide to follow the New Zealand model. In its conclusion to this lengthy judgment, the New Zealand Court observed that “the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity. The common law, where it is not clearly excluded, responds to challenge and change in a considered way, through trials involving the testing of evidence.”
The plaintiff was an elder of a Maori tribe and climate change spokesman for a national forum of tribal leaders. The defendants were all New Zealand companies involved in an industry that either emitted greenhouse gases or which released GHG when burned.
Legal news abounds these days with stories of fabricated decisions and authorities generated by ChatGPT and similar AI mechanisms. But there’s nothing like a bit of old-fashioned human plagiarism to tickle the palates, and the full force of a judge’s fury was unleashed on such an attempt recently in the High Court.
The facts appeared to be dry. The Claimant (an oil and gas company) commenced an arbitration claim against the Defendants, three companies in a banking group. It sought to enforce, under s. 66 of the 1996 Arbitration Act, what was said to be a Kuwaiti arbitration award dated 28 November 2022. This, in turn, was said to have been rendered in pursuance of an arbitration agreement between the claimants, Contax BVI, and the Defendants.
The Court was told that for a number of years Contax BVI had been attempting to liquidate an investment account held by the defendant banking company – to the tune of some €53 million. The Claimants then stated that this had been the subject of an arbitration under the auspices of the Kuwait Chamber of Commerce and Industry Commercial Arbitration Centre which had resulted in an award in its favour.
A number of documents were exhibited to the claimant’s witness statement, including the arbitration award, a decision by the Kuwaiti Commercial Court of Appeal and a document, said to be a statement by one of the claimant’s legal advisors, saying that attempts to enforce the award and Court of Appeal ruling in Kuwait had been unsuccessful. As Butcher J describes it,
“This application was put before me, in the ordinary way, on a without notice basis, for consideration on the papers, in early August 2023. Judges of this court have to consider very many paper applications of this type and others. I recall considering this one with some care, in that I did not find it all very easy to understand. I gave, I would say in retrospect, undue allowance for difficulties apparently arising from documents being prepared by people who were not native English speakers and/or whose grasp of English procedure was not perfect. It did not, however, occur to me that any of the documents might be fabrications. I was not on the lookout for fraud, and did not suspect it.”
Unsuspecting as he was, the judge made the order and gave the claimants leave to enforce it. But the defendants came back with a statement that there had never been any arbitration at all. As they put it in their skeleton argument supporting their application to have the order set aside:
“that the award is an out-and-out fabrication might seem at first blush unlikely – but substantial parts of it have been taken from Picken J’s judgment in Manoukian v Société Générale de Banque au Liban SAL [2022] EWHC 669 (QB)”
Butcher J described this case as “unique” in his experience, and “of the utmost seriousness”, and held that “there was no arbitration agreement or arbitration, and that the award and the Kuwaiti judgment are fabrications. I do not consider that there is a triable issue in relation to this.”
Documents before the Court
AI is definitely better at the business of fakery; due to the “black box” nature of its processing, it is almost impossible to identify the sources of its data. For a human processor it is much more difficult to conceal the true author of the material he or she has copied. So it was that the judge was able to establish the “arbitration award” , supposedly translated from Arabic, had substantial passages which are taken, with some modifications, from the judgment of Picken J in Manoukian, concerning completely different parties. It is best to see [40]-[44] of Butcher J’s judgment to get the full flavour of the claimant’s efforts to mislead the court but here is an example:
Extract from so-called Arbitration Award
” [5] … As a result, his position is (or was heading into the trial) precarious: any delay in the resolution of the present proceedings could potentially deny Contax Partners Inc BVI an effective remedy. It was for this reason, indeed, that the trial which took place before me was expedited: Contax Partners Inc BVI issued the proceedings on 1 December 2021; pleadings closed on 4 April 2022, and expedition was ordered at a hearing which took place on 21 June 2022. [6] In further consequence of the need for expedition, I indicated at a hearing which took place on 7th December 2021 that Contax Partners Inc BVI claim was successful, specifically his primary case that the Banks are contractually obliged to effect the transfers to where he wish. I made an order, indeed, to that effect. In the circumstances, this judgment does not deal with other aspects at all or, at least, in any particular detail.”
Extract from Picken J’s decision in Manoukian:
” [3] … As a result, his position is (or was heading into the trial) precarious: any delay in the resolution of the present proceedings could potentially deny Mr Manoukian an effective remedy. It was for this reason, indeed, that the trial which took place before me was expedited: Mr Manoukian issued the proceedings on 19 December 2020; pleadings were closed on 6 April 2021, and expedition was ordered at a CMC which took place on 8 June 2021. [4] In further consequence of the need for expedition, I indicated at a short hearing which took place on 25 February 2022 that Mr Manoukian’s claim was successful, specifically his primary case that the Banks are contractually obliged to effect the transfers. I made an order, indeed, to that effect. In the circumstances, this judgment does not deal with other aspects either at all or, at least, in any particular detail.”
As Butcher J points out, these examples, which could be multiplied, largely speak for themselves. He considered the following features to be important:
“(1) The text of the Award, in significant measure, derives from the text of Picken J’s judgment. This is obvious inter alia from: (i) the use of exactly the same, far from standard, defined terms (eg ‘General Transfer Right Issue’); (ii) the use of English legal terms (eg ‘claim in debt’, ‘exclusion clause’, ‘specific performance’); (iii) exactly the same phraseology being used, including the argot of English judgments (‘be that as it may’, ‘the submission is not entirely without merit’, ‘that said’, ‘fall to be considered’); (iv) the use of the same punctuation, even when it was not obvious, and arguably incorrect (eg in paragraph 129 of Picken J’s judgment, ‘…in debt, in the event, that the Court…’, both commas also appearing in the Award).”
Given his conclusion that both the award and the Kuwaiti judgment were fabrications, Butcher J set aside the order entering judgment against the Defendants in the terms of the purported “award”. He concluded (at para 52) that
“The result of this decision is that there are a considerable number of unanswered, but serious, questions, and in particular as to who was responsible for the fabrications which I have found to have been made, and whether there is culpability (and if any whose) as to the way in which the application for permission to enforce the purported Award was presented to the court. Those are matters which are likely to require investigation hereafter.”
This is a rare case involving the welfare of non-human animals balanced against the rights in the Convention. In the Court’s own words, “this is the first time that the Court has had to rule on the question of whether the protection of animal welfare can be linked to one of the aims referred to in paragraph 2 of the Article 9 of the Convention.” Thank you to Joshua Rozenberg for alerting me to this important ruling.
In his Concurring Opinion Judge Yüksel gives a useful brief description of what was at stake here.
“The case concerns decrees promulgated under Belgian domestic law which require, in the interests of animal welfare, stunning prior to the slaughter of animals. The applicants, who are of Muslim or Jewish faith, claim that the prior stunning in question would prevent them from carrying out ritual slaughter in accordance with the precepts of their religion, which would constitute an interference and therefore a violation of their right to respect for their religion within the meaning of Article 9 of the Convention
… At the heart of the case are therefore two questions: i) whether considerations linked to animal welfare can constitute a legitimate aim for the purposes of Article 9 § 2 of the Convention and ii) whether the contested measure did not actually go beyond what is necessary in a democratic society.” [para 3 of the Opinion]
The full judgment is available only in French. A summary of the salient points follows.
The proposed laws under attack
The slaughter of food animals without prior stunning has been banned in a number of countries signatory to the Convention, in the interests of animal welfare. However, both Jewish and Islamic rituals require maximum bleeding of the animal for the resultant carcass to satisfy the requirements of religious laws. Moreover, both rituals require the animal to be healthy and in good condition at the time of slaughter, and to die as a result of blood loss. But scientific research has shown that the fear that stunning would have a negative impact on bleeding is unfounded. “Electronarcosis” (see image above) is a reversible (non-lethal) stunning method that is possible for some smaller species of food animals (pigs, sheep and goats). This means that if the throat is cut immediately after this stunning method, the animal has indeed died solely of blood loss.
For decades, close family members have been able to claim for psychiatric illness caused by witnessing the death or serious injury of their loved ones, whether it be on the scene of the accident, hospital or mortuary. The jury has been out on the recoverability of these claims when the “qualifying accident” has been the result of admitted clinical negligence. The Supreme Court has just ruled this out as a basis for compensation. In Episode 193 of Law Pod UK, Rosalind English discusses this judgment and its implications for damages following clinical negligence claims with Judith Rogerson of 1 Crown Office Row.
In Episode 191 Jon Metzer and Lucy McCann join Rosalind English to review the judgements and decisions of the past year that we at Law Pod UK consider to have the most important implications for the law. The cases we discuss are the following:
This interesting case concerns a problem endemic to the manner of regulating water bodies under the Water Framework Directive and the regulations passed under it. This is what happened.
The anglers’ group Pickering Fishery Association raised concerns with the Environment Agency regarding the deterioration in the water quality of the Upper Costa Beck (“UCB), a ground water fed stream in North Yorkshire. It is described by the water campaigning group that acted for them in this litigation as “one of the best trout and grayling rivers in Yorkshire”. They owned the leasehold and freehold fishing rights for most of the UCB. The UCB provides water to two fish farms and downstream is the Yorkshire Water’s water treatment works, which discharges back into the UCB.
The claimant’s concerns included the impact of the recorded sewage overflows from Pickering Waste-Water Treatment Works; the level of sediment deposits resulting from the fish farm ‘suspended solids’ emissions; and the adequacy of the Environment Agency’s environmental permit conditions and other controls. Sewerage overflows from the water treatment works occurred over 250 times in 2020 and over 400 times the year before.
Episode 190: join environmental law expert David Hart KC of 1 Crown Office Row and Roy Harrison, professor of public health and expert in airborne emissions of Birmingham University, for a fascinating and disturbing discussion of two cases concerning the contamination of the environment in countries where enforcement standards are not as strong as they are in the West. You will hear both the scientific details of how these contaminants behave when they get into the environment, and the practicalities of getting class actions going in the courts to bring the polluters to book.
We have the Royal Society of Chemists to thank for this interesting discussion, in particularly the Society’s Toxicology Group which held a seminar in November to bring scientists and lawyers together to explore current perspectives on environmental toxic tort claims and review recent cases.
This was an appeal by a doctor against a decision of the medical practitioners’ tribunal that he was guilty of misconduct. He also appealed against the tribunal’s decision to suspend his registration for six months.
Factual and legal background
The appellant (“A”) is a colorectal and breast surgeon who has been registered since 1990, having qualified in Pakistan. He had been working as a locum consultant surgeon at the North Manchester Hospital NHS Trust between April and October 2020. This was during the Covid-19 Pandemic and included the early stages of lockdown imposed by the Government. A appeared on a number of YouTube videos voicing his doubts about the severity of the COVID-19 pandemic. The gravamen of the allegations agains him was that he had used his position as a doctor to promote his opinions and that his actions were “contrary to widely accepted medical opinion” and had undermined public confidence in the medical profession.
This is what he is said to have alleged on the You Tube platform:
a. the Sars-CoV-2 virus and/or Covid-19 disease do not exist or words to that effect; b. the Covid 19 pandemic was a conspiracy brought by the United Kingdom, Israel and America or words to that effect; c. the Covid-19 pandemic was a multibillion scam which was being manipulated for the benefit of: i. Bill Gates; ii. pharmaceutical companies; iii. the John Hopkins Medical Institute of Massachusetts; iv. the World Health Organisation, or words to that effect; d. the Covid-19 pandemic was being used to impose a new world order or words to that effect; e. the Sars-CoV-2 virus was made as part of a wider global conspiracy or words to that effect.
a. undermined public health, and/or; b. were contrary to widely accepted medical opinion, and/or; c. undermined public confidence in the medical profession.
When criticised about these activities, A undertook to remove the videos, but failed to do so.
Importantly, the GMC and the Tribunal considered that A’s opinions on mask wearing and the discharge of elderly patients from hospital might have been controversial, but that they remained within the domain of freedom of expression for doctors as well as the wider public. (My italics. The jury is still out on mask wearing, and the doctor in this case was rightly free to opine on their efficacy).
The problem was his pronouncements on social media that the virus was a hoax and did not exist, and his promotion of conspiracy theories suggesting that vaccines were in development for the deliberate harm or manipulation of the public
The GMC considered that A was guilty of misconduct and demonstrated impairment of his fitness to practise. It referred to the GMC’s “Good Medical Practice” and its guidance on “Doctors’ use of social media” and concluded that immediate suspension of D’s registration was appropriate.
Before the Tribunal, the GMC argued that A had used his position as a doctor in the UK to promote his opinions.
The gravity of the impact of the coronavirus and Covid-19 on public health was being explained on a daily basis to the public and disseminated to medical professionals. The general public was required to comply with the restrictions and the messages were provided to set out the rationale for the restrictions and the reasons compliance was required. …In the Tribunal’s view they ran counter to the public health messages being disseminated at the time.”
…”In the Tribunal’s view, and in the context of the status of the pandemic at the time, hearing such opinions expressed by an NHS consultant surgeon would, on the balance of probabilities, have the effect of undermining public health. One of the key government messages at the time was that compliance with restrictions [were] required to ‘Protect the NHS’.
The Tribunal considered that an NHS consultant asserting as fact such statements of the kind as set out above undermined important public health messages.
A submitted that (1) the tribunal’s decisions did not meet the Article 10 tests of necessity or proportionality; (2) the GMC’s guidance did not meet the Article 10(2) “prescribed by law” condition; (3) suspension was disproportionate and inappropriate, particularly given the 18-month period of successive interim suspension orders.
Appeal to the High Court
The grounds of appeal focussed primarily on whether the Tribunal’s decisions were consistent with A’s article 10 rights. Ground 1 was that the conclusions on misconduct and impairment were contrary to article 10(1) because they give rise to an interference with article 10 rights that was not “prescribed by law” that, for that reason alone, did not meet the requirements laid down within article 10(2) and is unlawful.
Ground 2 was that, in any event, the conclusions on misconduct and impairment were a disproportionate interference with A’s rights under article 10(1). Grounds 3 and 4 were aspects of Ground 2. The former was that the Tribunal was wrong to conclude that expressing views “outside widely accepted medical opinion” either amounted to misconduct or was capable of providing justification for interference with A’s right to freedom of expression. The latter was that there was no evidence to support a conclusion that what A said damaged the reputation of the medical profession. This too, it was submitted, goes to whether the conclusions of misconduct, impairment, and the penalty imposed could be proportionate interferences with A’s Convention rights. Ground 5 was that the decisions to impose a final order for suspension and to make an immediate order suspending Mr Adil pending any appeal were disproportionate in that each failed to give sufficient weight to mitigating or compensating circumstances.
A German group that raises funds for the terrorist organisation Hamas has lost its claim under Article 11 (right to free association) in the European Court of Human Rights. Joshua Rozenberg’s report on the decision is here. The summary below is based on the Court’s judgment.
In 2022, there were over three hundred thousand incidents of overflow into coastal waters, freshwater rivers and estuaries from sewerage works in the UK, following heavy rainfall. The most common cause of the overflows studied was rainwater entering sewers with insufficient capacity.
These proceedings were brought in regard to the publication of a Plan regarding setting out specific targets for water companies, regulators and the Government “to work towards the long-term ambition of eliminating harm from storm overflows”. These targets are compliance with existing statutory obligations, including conditions in permits issued by the Environment Agency.
The Plan sets three targets: that water and sewerage companies will by 2050 only be allowed to discharge from a storm overflow where there would be no local adverse ecological effect; the second target is to protect public health in designated bathing waters: water and sewerage companies must by 2035 significantly reduce harmful pathogens from overflows either by carrying out disinfection or by reducing the frequency of discharges; the third, a backstop target for 2050, which operates in addition to the first two targets: by 2050 storm overflows will not be permitted to discharge above an average of 10 heavy rainfall events a year.
The Marine Conservation Society, an oyster growing company and an individual representing the public interest also challenged the legality of the Plan. The Environment Agency and Ofwat were interested parties.
Factual Background
In 2020 the sewerage network was under pressure from a growing population, increased run-off from urbanisation and heavy rainfall. It was acknowledged that the cause of overflow was the lack of capacity in the current sewer network and that had to be tackled. The government and Ofwat recognised that that water infrastructure had not kept pace with developmental growth over decades.
In the face of this, officials and ministers started formulating policy targets which would require improvements going beyond those which could satisfy a cost-benefit test(the so-called and therefore be required under regs.4 and 5 of the 1994 Regulations (BTKNEEC: see below.)
The new statutory plan that the Secretary of State had to produce was seen as a means to set specific, time-bound objectives which would drive widespread change on storm overflows across the country. But officials advised that the target should seek to reduce discharges significantly rather than eliminate them altogether, because of the costs involved and the small level of additional benefit generated.
In Episode 189 presenters Rosalind English and Lucy McCann reprise some of the leading episodes of Law Pod UK this year, ranging from the potential impact of AI on the legal professions, to the problem of Deprivation of Liberty Orders for children in the UK, given the severe lack of regulated accommodation available for the family courts to identify.
For a reminder and a refresher of the wide spectrum of subjects we cover on this series, dive in, learn and enjoy.
Listen to Family law expert Richard Ager talk to Melissa Patidar about her intermediary service company, Comunicourt, which provides communication support between lawyers and witnesses in remote and face to face hearings in family court proceedings. They discuss parties with vulnerabilities, qualifications and role of an intermediary, and how lawyers should aim to work with them.
Traditionally, the courts have been extremely reluctant to impose a positive duty of care on the police to protect or warn members of the public who may be potential victims of crime. This sort of liability, it is thought, would lead to defensive policing.
In a leading authority on this issue, Hill v Chief Constable of North Yorkshire Police (the Peter Sutcliffe case 1989), the House of Lords said that the imposition of a duty of care to individual members of the public would be detrimental.
“A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime”.
In Episode 187 of Law Pod UK, Rosalind English discusses with barrister Conor Monighan of 5 Essex Court the implications of this decision for the police and other public authorities in the UK. I would urge anyone interested in this subject not only to listen to the podcast but also to read Conor’s deep dive into the case in his recent post on UKHRB: A Common Law Duty of Care to Issue an Osman Warning? In that post you will find references to previous authorities on police liability in this context, with full citations.
And … please keep the feedback rolling! It will only take you a couple of minutes to fill in this very short anonymous survey. Thank you in advance. www.surveymonkey.co.uk/r/LawPodUK
In the latest episode of Law Pod UK, Robert Kellar KC discusses the developing law on NFTs with Victoria Walters, library learning advisor at the Bristol campus of the University of Law. We are grateful to Victoria and the University for the permission to repost this interview.
As Robert explains, the “token” is a crypto token that exists on a decentralised network, or a blockchain. The tokens are minted using blockchain technology, and can be transferred and traded. As for “non-fungible” – something that is fungible is interchangeable with other things, like money. Something is non-fungible is unique, like a piece of art.
Hear more about this interesting marketplace involving exchanges of considerable value by listening to Episode 186 of Law Pod UK.
Plus: we want your feedback! Please take a couple of minutes to fill in this very short anonymous survey. Thank you in advance. www.surveymonkey.co.uk/r/LawPodUK
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