Media By: Rosalind English


Doctors acted unlawfully in deciding on eligibility for drug – Court of Appeal

4 March 2021 by

Nusinersen, marketed as Spinraza

Basma (suing by her mother and litigation friend Sara Basma) v Manchester University Hospitals NHS Foundation Trust & Anr [2021] EWCA Civ 278

Sophie Basma (“Sophie”) is 10. She suffers from Type 3 Spinal Muscular Atrophy (“SMA”). SMA is a rare, genetic, neuromuscular disease which progressively leads to sufferers being unable to walk or sit unaided with devastating consequences on their quality of life. Sophie can no longer walk. There is medication for SMA sufferers which would have had the potential of helping Sophie regain her ability to work. But the NHS Trust had concluded that Sophie did not meet the eligibility criteria for this new medication, “Nusinersen”.

By her mother she challenged the decision by way of judicial review. The judge below found that the NHS Trust had lawfully reached the decision that they did. This was her appeal against that finding.


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Parent company owes duty of care in transnational cases – Hague Court of Appeal

1 March 2021 by

Parent company owes duty of care in transnational cases - Hague Court of Appeal

The Hague Court of Appeal has recently handed down a ruling that is of profound importance to environmental lawyers. It is not only the first case at the appellate level in Europe that has resulted in a victory on the merits for the victims, but also the first case to hold that a parent company was under a duty of care with regard to foreign claimants. I will attempt to summarise one of the judgments in the following paragraphs, but readers would do well to look at the detailed analysis of the case by  Dr Lucas Roorda on the Rights as Usual blog: “Wading through the (polluted) mud: the Hague Court of Appeals rules on Shell in Nigeria”.

David Hart QC will follow up my post with a piece on  the UK Supreme Court decision in Okpabi v Shell on 12 February 2021.

There are in fact three judgments in this case Four Nigerian Farmers and Milieudefensie v. Shell; as Dr Roorda says,

The first (‘Cases A and B’) concerns an oil spill from an underground pipeline near Oruma in 2005; the second (‘Cases C and D’) concerns an oil spill from an underground pipeline near Goi in 2004; the third (‘Cases E and F’) concerns an oil spill from a wellhead near Ikot Ada Udo. 

All three cases involve the same legal issues, different claimants and slightly different facts. Dr Roorda focusses on Cases C and D in her post. To avoid unnecessary overlap, I will be referring to Cases E and F, Milieudefensie v Royal Dutch Shell plc (1) and Shell Petroleum Development Company of Nigeria Ltd (E), and Shell Petroleum Company of Nigeria Ltd v Friday Alfred Akpan (F) . Milieudefensie is the Netherlands branch of the NGO Friends of the Earth, who supported all of the cases.


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Law Pod UK: AI and the Law

1 March 2021 by

In the latest episode of Law Pod UK Rosalind English talks to Matt Hervey, co-editor with Matthew Lavy of a new practitioner’s text book on Artificial Intelligence. Matt is Head of Artificial Intelligence at Gowling WLG., and advises on all aspects of AI and Intellectual Property, particularly in relation to the life sciences, automotive, aviation, financial and retail sectors. Our discussion ranges across many areas covered by the book, which was conceived a mere three years ago when the only laws we had to deal with machine learning were those to do with self-driving vehicles and automated decision making under the GDPR. This is a very important subject which is why Law Pod UK visits it again and again; Matt compares machine learning to the industrial revolution itself.

The ability to understand patterns in language and sudden unlocking ability of machines to understand language and see things has massive implications.

But there are much greater challenges, particularly on the topics of liability, foreseeability, and the general risks of AI,

a technology that is aiming to replicate or even transcend human abilities.

In the forthcoming months I will be speaking to Matt’s fellow contributors to the book on their specialist subjects, including negligence, liability for physical and economic harm, AI and professional liability, and more on AI and intellectual property, a fascinating subject which Matt touches on in this episode.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Vaccination and public/private coercion

10 February 2021 by

In an earlier post I discussed the problem of “vaccine hesitancy” and  written evidence to Parliament to Parliament outlining ways in which a vaccination against Covid-19 without consent could be put on a par with capacity under the Mental Capacity Act 2005 and with Section 3 of the Mental Health Act 1983.

Since the announcement of successful clinical trials for the vaccination was made in mid-December, the prospect of population-wide vaccinations has become a reality, and, whilst there are still supply problems, there is no doubt that the issue of medical intervention without consent being made mandatory either through private channels has begun to exercise legal minds across the country. Saga cruise line and the airline Qantas for example have indicated their intention to refuse non vaccinated passengers. Such private prohibitions may have almost as broad an effect as the restrictions on civil liberties passed under the Coronavirus Act since lockdown was declared on March 23 2020 (more specifically, the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020).

I write this solely to draw attention to the cogent summary of these questions published by Boyes Turner LLP on the 5th February via Lexology: A Shot in the Arm – Can Leisure and Hospitality require a vaccine to access their Services? They ask, whatever the government does, are there legal risks in private vaccination enforcement measures? Their points are, in short:


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When can we go away?

9 February 2021 by

Snowed in while locked down? What would be more cheering reading than news from one of the no-frills airlines that there will soon be a fast track for vaccinated passengers to leave these shores for balmy Mediterranean beaches, or as the ad puts it “sunshine destinations”. Ryanair recently put out the slogan

Jab and Go

This advertising campaign, encouraging consumers to book flights following the roll out of the UK vaccination programme, might have been a perfectly understandable response to the year-long shock of having very few passengers to transport and the equally deranging inability of citizens to travel abroad.

But it turns out that Ryanair were somewhat ahead of themselves, as the Advertising Standards Authority has found that it was misleading for the airline to give the impression that most people who are hoping to take to the air over the Easter or summer holidays this year will have had the Covid-19 vaccination in time to do so.


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Enforced wearing of masks declared unconstitutional

25 January 2021 by

Following my post on the Weimar District Court judgment, here is news from Belgium. This summary of the ruling is from the journal LeVif.

The police tribunal in Brussels issued a judgment on 12 January acquitting a man summoned for non-wearing of a mask, according to his lawyer, Hélène Alexandris. The judge concluded that the enforced wearing of the mask in public space was unconstitutional. Interior Minister Annelies Verlinden said the public prosecutor has appealed against the decision.


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German District Court declares Corona Ordinance Unconstitutional

25 January 2021 by

In a landmark judgment on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021)

Kontaktverbot verstößt gegen Menschenwürde (Verdict: Contact ban violates human dignity)

In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together. The judge’s conclusion was that the Corona Ordinance was unconstitutional and materially objectionable.

This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic (thanks to @HowardSteen4 for alerting me to this judgment, and commentary quoted below).


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Law Pod UK latest episode: Catherine Barnard on Brexit

5 January 2021 by

On Wednesday 30 December, the UK parliament passed Boris Johnson’s trade and cooperation agreement with the European Union. Professor Catherine Barnard of Cambridge University is continuing her series 2903 CB. Everyone agrees this is a bit of a thin deal – as Catherine predicted – but is it a good deal?

As Catherine said, the negotiating team has delivered on sovereignty. There’s no reference in the text to the CJEU or EU law. On the other hand, there’s very little about services of any sort in the deal. This is because the UK was so keen not to be subject to the European Court of Justice, so it was not looking for concessions in this area.

The document is a daunting 1246 pages long – but the first four hundred odd are the meat of the deal, and in Episode 133 Professor Barnard delivers a succinct and truly helpful summary of what she calls a “Canada minus” free trade deal.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Might the Human Rights Act impose a duty to pass subordinate legislation?

11 December 2020 by

On 25 November 2020 David Hart wrote a post setting out the central issues in Henshaw J’s lengthy judgment, R (o.t.a. of Aviva & Swiss Re) v. Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin). If you want to remind yourself of the details of this interesting case read David’s post –Successful insurers’ A1P1 claim concerning benefits reimbursement in asbestos claims.

One question David didn’t go into occupies only two pages of the 183 paragraphs but is worth a post on its own. The claimant insurers argued that the defendant Secretary of State had unlawfully omitted to make regulations under the Social Security (Recovery of Benefits) Act 1997 that would have limited the amount of the liability imposed on the insurer by that Act (Section 22(4)). This is because of subsequent developments in the law of tort which made unlimited liability unfair. They maintained that as Parliament had itself been prepared to delegate authority in this area to the Executive, the failure of the defendant to make secondary legislation led directly to their loss. Section 30(1) of the 1997 Act provides that any power under it to make regulations or an order is exercisable by statutory instrument.


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Best of Law Pod UK 2020

8 December 2020 by

Covid, clinical negligence, quarantine, lockdown, inquests, nerve agents, algorithms, child abuse, coercive and controlling behaviour and racism. What’s there not to like in our smorgasbord of favourites from the past eleven months?

Worry not: there are laughs to be had. A bee bothers a bureaucrat with solemn consequences for subordinate legislation in a motion of regret debate.

Happy listening to Episode 132!


Law Pod UK is available on 
Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Magna Carta and Freemen on the Land

4 December 2020 by

AVI and MHVB and Jacqueline Robinson, a.k.a. Jacquie Phoenix (Third Party and Unauthorised Alleged Representative) 2020 ABQB 489

I was put on to this decision from the Court of Queen’s Bench of Alberta by a response to a post from the Secret Barrister on Twitter (@barristerSecret) . This concerns the Magna Carta tsunami that has wreaked a certain amount of havoc on social media in response to the government’s Covid restrictions.

We have been taking an interest in the Freemen on the Land phenomenon from the early days of the UKHRB. See Adam Wagner’s 2011 “Freemen of the Dangerous Nonsense” and his comment on the 2012 Alberta case Meads v. Meads, 2012 ABQB 571 (CanLII) 


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Dolan’s latest lockdown defeat

3 December 2020 by

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.

Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.


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Latest Law Pod UK Episode: Court of Protection Deputyship Orders

30 November 2020 by

In the Matters of ACC, JDJ and HPP  [2020] EWCOP 9

In her judgment of 27th February 2020 Hilder J laid down certain rules regarding what a property and affairs deputy can and cannot do in relation to seeking legal advice and taking steps in litigation. In these joined cases the deputies applied to the COP seeking orders for authorised expenditure of the protected persons’ estate for their costs in obtaining legal advice and conducting proceedings on P’s behalf.

The Senior Judge’s conclusions are set out in her summary at the end of the judgment. In Episode 131 of Law Pod UK Amelia Walker of 1 Crown Office Row discusses some of the salient issues in this comprehensive “one stop shop” ruling with Rosalind English.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Law Pod UK new episode: AI in Healthcare

9 November 2020 by

Artificial intelligence (AI) aims to mimic human cognitive functions. It is bringing a paradigm shift to healthcare, powered by increasing availability of healthcare data and rapid progress of analytics techniques. Robert Kellar QC of 1 Crown Office Row joins Rosalind English in the latest episode of Law Pod UK to answer some pertinent questions about the application of AI in healthcare and what it means for clinical negligence and other forms of litigation and regulation in medicine.

Will we come to a point when healthcare providers will be under a duty of care to use Artificial Intelligence? At some point the argument is likely to be raised that the advantages of AI are so stark that it would be illogical or irresponsible not to use it. What would this mean for the Bolam test? And for the courts – a judge hearing a clinical negligence case where the issues turn on algorithms may need to be more familiar with computer programming than with medical practice.

Hear these and more fascinating and not too far fetched points in discussion in Episode 130.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer 
or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Compulsory vaccination – the next step for Covid-19?

5 November 2020 by

Would you be first in the queue for the Covid-19 vaccine if and when it is rolled out? Or would you prefer to wait and appraise its effects on more pioneering citizens? With nearly a year of widespread media coverage of the coronavirus, it would not be surprising if a large percentage of an already fearful population exercised its right not to be subjected to what would be an assault and battery under English law: medical treatment without consent.

This is a syndrome, and it has a name. It is called “vaccine hesitancy”. The WHO describes this as “the reluctance or refusal to vaccinate despite the availability of vaccines”. Our willingness to avail ourselves of a future COVID vaccine is very much in doubt, and it is in doubt in high places.

Should a Covid-19 vaccine become available at scale, we cannot expect sufficient voluntary uptake.

Update: on Tuesday 17 November the Danish government finished considering a new law giving the government extended powers to respond to epidemics. Parts of this law that propose that:

People infected with dangerous diseases can be forcibly given medical examination, hospitalised, treated and placed in isolation.
The Danish Health Authority would be able to define groups of people who must be vaccinated in order to contain and eliminate a dangerous disease.
People who refuse the above can – in some situations – be coerced through physical detainment, with police allowed to assist. See the Danish newsletter here. In this country, Health Secretary Matt Hancock has refused to rule out mandatory inoculation, telling talkRADIO the government would ‘have to watch what happens and… make judgments accordingly’.

In July 2020 a group of philosophy and law academics presented written evidence to Parliament proposing that individuals should undergo vaccination as a

condition of release from pandemic-related restrictions on liberty, including on movement and association

The authors of the report base this proposal on two “parity arguments”:

a. If Covid-19 ‘lockdown’ measures are compatible with human rights law, then it is
arguable that compulsory vaccination is too (lockdown parity argument);
b. If compulsory medical treatment under mental health law for personal and public protection purposes is compatible with human rights law, then it is arguable that compulsory vaccination is too (mental health parity argument).

They contend that there is “an arguable case” for the compatibility of compulsory vaccination with human rights law.


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