By: Rosalind English
10 January 2019 by Rosalind English
ARB v IVF Hammersmith & Another [2018] Civ 2803 (17 December 2018) – read judgment
Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.
The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children.
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7 January 2019 by Rosalind English
“No negligence where the doctors disagree” – used to be the approach of the courts to expert evidence in medical cases. That deference has eroded in recent years.
Rosalind English talks to James Badenoch QC, who acted for the claimant Montgomery in the most recent Supreme Court case on informed consent in medical cases.
Law Pod UK will be following up the debate on Bolam expert evidence in future episodes.
Law Pod UK is available for free and without ads on Audioboom, iTunes, PodBean, The Podcast App or wherever you get your podcasts.
10 December 2018 by Rosalind English
In the latest episode of Law Pod UK Rosalind English talks to Catriona Murdoch of 1 Crown Office Row about Global Rights Compliance, an organisation offering a unique approach to atrocity crimes and other violations of international law. The Hague-based GRC works in partnership with The World Peace Foundation (‘WPF’) to combine expertise on conflict and food insecurity. Together they are identifying how international law may be used to advance the prevention, prohibition and accountability for mass starvation.
Law Pod UK is available for free and without ads on Audioboom, iTunes, PodBean,The Podcast App or wherever you get your podcasts.
3 December 2018 by Rosalind English
In Episode No 56, Suzanne Lambert and Emma-Louise Fenelon discuss the recent judgment of Whipple J in YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB)
In her analysis of the decision Suzanne refers to: the control mechanisms established by the House of Lords in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, the House of Lords decision in Page v Smith [1996] 1 AC 155 and the decision of the Court of Appeal in A Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588.
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30 November 2018 by Rosalind English
Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment
A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here, here and here). As the Supreme Court noted in their short decision, Mr Conway
could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.
But Mr Conway doesn’t see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued, would avoid all these problems.
In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.
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29 November 2018 by Rosalind English
As part of our continuing collaboration with Professor Catherine Barnard of Cambridge University, we now have her latest episode on the Political Declaration on the withdrawal deal: Episode 55 of Law Pod UK. Towards the end of her 15 minute interview with Boni Sones Catherine talks about the Wightman reference to the CJEU from the Scottish Court of Session asking whether Article 50 can be revoked, and if it can be revoked, can it be done unilaterally by the UK or only bilaterally with the EU’s agreement. Exceptionally, the entire banc of the EU justices have just heard this case which indicates just how important this issue is; judgment awaited.
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23 November 2018 by Rosalind English
This week Law Pod UK, the podcast brought to you by the barristers at 1 Crown Office Row, surpassed 90 000 listens since our launch in May last year. Nobody could have predicted the runaway success of the podcast form a couple of years ago. Our short podcasts have proved enormously popular, not least because they provide updates on the latest legal developments with crisp discussion that absorbs the attention but lasts no longer than a short commute.
Rosalind English and Emma-Louise Fenelon present discussions with barristers, solicitors and academics on a wide range of topics including the recent Supreme Court decision in Darnley, human trafficking, clinical guidelines, and the impact of AI on the legal profession.
Intrigued? Subscribe to Law Pod UK via Apple Podcasts, iTunes, Audioboom or wherever you get your podcasts. And if you like what you hear, please remember to rate and review us. Your support is encouraging and we hope you can help us make 100,000 listens by Christmas.
Thank you to everyone who has listened and keep an eye out for the new episodes to be released shortly!
26 October 2018 by Rosalind English
WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA 2339 (22 October 2018) – read judgment
The Court of Appeal has ruled that the supermarket chain was vicariously liable for one of its employees’ unlawful disclosure of personal data belonging to other employees even though this act took place away from the workplace and the was part of a sequence of planned events leading to the commission of this wrongdoing.
The central issue before the Court was whether an employer is liable in damages to those of its current or former employees whose personal and confidential information has been misused by being disclosed on the web by the criminal act of another employee, who had a grudge against the employer, in breach of the Data Protection Act 1998, and in breach of that employee’s obligation of confidence. The Court held that it did; the common law remedy of vicarious liability of an employer for its employee’s misuse of private information and breach of confidence was not expressly or impliedly excluded by the Data Protection Act 1998, notwithstanding that the Act itself excluded an employer’s liability for wrongful processing of personal data by an employee.
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26 October 2018 by Rosalind English
E.S. v Austria (Application no. 38450/12) 25 October 2018 – read judgment
In a judgment which has received instant and worldwide publicity, the Strasbourg Court has ruled that the Austrian government did not violate an individual’s freedom of expression when she was fined for saying at a 2009 seminar she gave on Islam that Mohammed had married one of his wives, Aisha, at the age of six and had intercourse with her from the age of nine. Although this would be classified as paedophilia today, the Austrian criminal court found that the insinuation that Mohamed had paedophilic tendencies amounted to an unlawful disparagement of religious doctrines. Because, in modern society, paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation. Defaming the prophet in this way went “beyond the permissible limits of an objective debate” and “could stir up prejudice and put at risk religious peace”. Thus her words had exceeded the permissible limits of freedom of expression.
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15 October 2018 by Rosalind English
The Supreme Court’s judgment on the liability of hospitals for the actions and misstatements of their non-medical staff is an important line in the sand for the NHS. Owain Thomas QC discusses the implications of this ruling with Rosalind English on Law Pod UK here, following his widely read post on the UK Human Rights Blog.
And as part of our repodcast arrangements with Catherine Barnard of Cambridge University, we have posted two new episodes on the Brexit negotiations, here and here. In Episode 46 of Law Pod UK Professor Barnard features an exclusive interview with Sir Ivan Rogers, the former UK Ambassador to the EU, following his speech to Trinity College Cambridge last week: “Brexit as a revolution”.
Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
10 October 2018 by Rosalind English
Lloyd v Google LLC [2018] EWHC 2599 (QB) 8 October 2018 – read judgment
This is a novel form of action, but everything was new once (Warby J para 100)
Already today we are becoming tiny chips inside a giant data-processing system that nobody really understands. (Yuval Noah Harari, 21 Lessons for the 21st Century, p. 36)
Do people want privacy? Because they seem to put everything on the internet. (Elon Musk, interview on Joe Rogan podcast #1169 at 1.49)
Most of us resignedly consent to the use of cookies in order to use internet sites, vaguely aware that these collect information about our browsing habits in order to target us with advertisements. It’s annoying, but does it do us any harm? That is the question that came up before Warby J in a preliminary application for a representative claim last week.
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4 October 2018 by Rosalind English
Help Refugees Ltd, R (on the application of) v Secretary of State for the Home Secretary [2018] EWCA Civ 2098 – read judgment
This was an appeal by Help Refugees Ltd against the refusal of its application for judicial review of the secretary of state’s consultation process regarding the relocation of unaccompanied asylum-seeking children under Section 67 of the Immigration Act 2016.
Background law and facts
This provision was passed in response to the mass migration into Europe of unaccompanied asylum-seeking children (UAS children) from the Middle East and North Africa. Section 67 established a scheme whereby the secretary of state was required to arrange for the relocation of “specified number” of UAS children. That number was to be determined by the secretary of state in consultation with local authorities. Because the s.67 scheme was not the only route by which UAS children might lawfully enter the UK, the specified number was to represent the highest number of s.67 UAS children that the local authorities could reasonably accommodate. It is inherent in the provision that the interests of UAS children in being located in the UK have to be balanced against the interests of other children for whom local authorities are responsible, and the public interest in ensuring that there is reasonable resource capacity in the system to accommodate the UAS children. In late 2015 – 2016 the number of migrants hugely accelerated in France, reflected in the increase in attempts to make unauthorised access to the UK from France through ports in Kent. This in turn imposed a huge burden on the local authorities in that region to fulfil their obligations under the Children Act, necessitating relocation to other parts of the UK.
On 8 September 2016, the Home Office wrote to all local authorities asking each to specify the number of children it could accept under s.67. By October, when the refugee camps in Calais were being cleared, UAS children in France were assessed for transfer under s.67 against published criteria, such as age, length of time in Europe, and country of origin (with older Sudanese and Syrian UAS children being allowed in). UAS children in France were assessed for transfer against these published criteria. For practical purposes, those who satisfied the criteria were transferred; and those who did not were not. The latter were told simply that they had not met the eligibility criteria –
“Age 18+” or “Criteria not met”.
The charity challenged both the lawfulness of the consultation process and the adequacy of the reasons given to the rejected children. The Divisional Court rejected both grounds of challenge ([2017] EWHC 2727 (Admin)).
The charity argued that the secretary of state had (1) failed properly to discharge her duty to consult; (2) breached her common law duty of procedural fairness by failing to give adequate reasons to the rejected children.
Hickinbottom LJ, giving judgment for the Court, allowed the appeal.
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2 October 2018 by Rosalind English
With the start of the legal term, we’ve posted three great podcasts on Law Pod UK. Episode 42 looks at the influence of international law on individual rights after Brexit. In Episode 43 Clare Ciborowska discusses the new offence of coercive and controlling behaviour in family proceedings. And in Episode 44 we go to the Sainsbury Laboratory in Cambridge to find out what plant scientists think of the recent CJEU ruling on genetically modified organisms.
Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
31 August 2018 by Rosalind English
In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48- read judgment
An unmarried mother has won a landmark Supreme Court case which could allow cohabitees to claim Widowed Parent’s Allowance, a benefit previously only applicable to married parents.
Background
Widowed Parent’s Allowance (“WPA”) is a contributory non-means-tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. The widowed parent’s entitlement depends upon the contribution record of the deceased partner. Under the relevant law (“s39A”) the widowed parent can only claim the allowance if he or she was married to or the civil partner of the deceased.
The issue before the court was whether this requirement was an unjustifiable discrimination against the survivor and/or the children on the basis of their marital or birth status, contrary to Article 14 of the Convention on Human Rights together with the right to respect for family life under Article 8, or the protection of property rights in Article 1 of the First Protocol ECHR.
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9 August 2018 by Rosalind English
In our ongoing reposts of Professor Catherine Barnard’s series 2903 CB, Catherine discusses her reaction to the publication of the government’s White Paper, the Cabinet resignations of David Davis and Boris Johnson, and the negotiating positions of the EU since the UK triggered Article 50 in March 2017.
Listen to Episode 41 of Law Pod UK Brexit – The White Paper now.
Available for free download from iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
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