By: Rosalind English
8 March 2013 by Rosalind English
R on the application of Save our Surgery Ltd v Joint Committee of Primary Care Trusts (Defendant) and Newcastle Upon Tyne Hospitals NHS Foundation Trust (interested party) [2013] EWHC 439 (Admin) – read judgment
Philip Havers QC, Jeremy Hyam of 1 Crown Office Row represented the claimant in this case, and Marina Wheeler of 1COR acted for the defendant. None have them have anything to do with the writing of this post.
In this latest challenge to the reconfiguration of paediatric heart surgery services., the Administrative Court has held that an NHS plan to end child heart surgery at a number of centres in the UK was flawed for lack of consultation (see Martin Downs’ post on a previous challenge to this consultation).
As Martin predicted, fairness and consultation have proved to be more solid ground from which to launch a missile against the NHS reconfiguration plan. This plan followed the findings of the Public Inquiry into deaths at Bristol Royal Infirmary (the “Kennedy report”) and was meant to address the “fragmented and uncoordinated” nature of this surgery across the country. The inquiry found that up to 35 children had died as a result of sub-standard care during heart surgery. As a result, a specialist panel, the Joint Committee of Primary Care Trusts (JCPCT), was set up to encourage the development of specialisation by reducing the number of centres providing paediatric cardiac services.
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6 March 2013 by Rosalind English
Tesla Motors Ltd and another v British Broadcasting Corporation [2013] EWCA Civ 152 – read judgment
The Court of Appeal has refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme. The judge below had been correct in concluding that there was no sufficient prospect of the manufacturer recovering a substantial sum of damages such as to justify continuing the case to trial.
The manufactures of an electric sports car made two of their “Roadsters” available to BBC’s “Top Gear” programme for review. The show’s tests were designed to push the cars to the limits of their performance in terms of acceleration, straight line speed, cornering and handling. One of the cars was driven by the presenter of the show, Jeremy Clarkson, who was filmed driving it round the test track and commenting on his experience.
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1 March 2013 by Rosalind English
Omar, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118 – read judgment
Angus McCullough QC of 1 Crown Office Row acted as a special advocate in this case. He is not the author of this post.
The contending principles in this case are encapsulated in the question put to the Court of Appeal:
In considering whether to allow an application for evidence in proceedings abroad, is the Court to “fill a justice gap” or “respect a sovereignty limit”?
This was an appeal from a decision by the Divisional Court decision in June last year. My post on that ruling sets out the salient facts. In sum, that court refused the claimants’ application for an order against the secretary of state for material for use in proceedings in Uganda.
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27 February 2013 by Rosalind English
Updated: The Supreme Court has now ruled on this case, rejecting Bowman’s appeal: see judgment. On Tuesday 19 February, the US Supreme Court heard opening arguments in the latest stage of the battle between a 75 year old farmer and the agri-giant Monsanto, over whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products. The dispute in Bowman v Monsanto goes to the heart of the debate over the patenting of living organisms. This of course is also at the centre of the Myriad breast cancer gene litigation which I covered here.
The case is fascinating not just because it exposes the limits of patent law in an era of fast-growing biotechnology, but because it seems to speak to the concerns of the anti-GM lobby – the stranglehold of big corporations over farmers, the fear of transgenic organisms themselves and their consequences for agriculture. But Green woo about the dangers of genetically engineered crops will not find judicial endorsement in this litigation, despite the multiple briefs filed in support of Bowman, attacking GM technology. This is an inquiry into the reality or otherwise of patenting nature, not the morality thereof. As The Atlantic summarises it:
It’s a story about technology and innovation and investment, about legal standards and appellate precedent and statutory intent, about the nature of nature and how the law ought to answer the basic question of who owns the rights to the seeds of planted seeds.
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20 February 2013 by Rosalind English
Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701 (17 January 2013) – read judgment
The Employment Appeal Tribunal (EAT) has found that the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
Background
The Appellant, a casual sub-editor on the Times Newspaper, was a Roman Catholic. He was working at the Times during the visit to the United Kingdom of the Pope in 2010. During March the Times was preparing a story about the Pope relating to allegations that he had protected a paedophile priest. There was some delay in producing the story, and one of the editors in the newsroom, a Mr Wilson, shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?”. When there was no response he repeated the question more loudly. The Appellant was upset and offended what he heard. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the Employment Tribunal for harassment and victimisation on the grounds of his religious belief.
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17 February 2013 by Rosalind English
Tamiz v Google Inc [2013] EWCA Civ 68 – read judgment
The Court of Appeal has ruled that in principle, an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might be a “publisher” of this material, although in this case the probable damage to the complainant’s reputation over a short period was so trivial that libel proceedings could not be justified.
This interesting case suggests there may be an opening for liability of Google for defamation, if certain steps have been taken to fix them with knowledge of the offending statement. Mr Tamiz, who claimed to have been defamed by comments posted on the “London Muslim Blog” between 28 and 30 April 2011, appealed a decision in the court below to decline jurisdiction in his claim against the respondent corporation and to set aside an order for service of proceedings on Google out of the jurisdiction.
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15 February 2013 by Rosalind English
Moore v British Waterways Board [2013] EWCA Civ 73 – read judgment
A boat owner has won his appeal against the British Waterways Board preventing him from mooring his boats alongside his land on a tidal stretch of the Grand Canal. Although he had no common law right to permanently moor the boats, he had committed no actionable wrong in doing so, and they were therefore not moored “without lawful authority” within the meaning of the British Waterways Act 1983. This judgment is an interesting and important endorsement of the principle in English law that everything is permitted except what is expressly forbidden.
This key “rule of law” principle applies as much to the BWB as it does to the police and other law enforcement agencies.
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13 February 2013 by Rosalind English
Reilly & Anor, R (On the Application of) [2013] EWHC Civ 66 – read judgment
Adam Wagner has also commented on this case in The Times (£) as well as on Newsnight (from the start)
The Court of Appeal has ruled that regulations under the Jobseekers Act 1995 were unlawful as not meeting the requirements of that statute.
This was an appeal against a decision by Foskett J that the regulations were lawful. The two appellants were unemployed and claiming the Jobseekers’s Allowance. After refusing to participate in schemes under the Regulations in which they were required to work for no pay ( the Sector-Based Work Academy in Miss Reilly’s case and the Community Action Programme (CAP) in Mr Wilson’s), they were told that they risked losing their allowance.
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11 February 2013 by Rosalind English
Ali Hussein v Secretary of State for Defence [2013] EWHC 95 (Admin) – read judgment
Collins J has dismissed a claim that the MOD’s policy of allowing interrogators to shout at a captured person in order to obtain information is unlawfully oppressive. Not only did the complaint fail but it was denounced as “misconceived” and one which should never have been pursued.
Background
British armed services have two policies for questioning captured persons (CPERS) who are believed to possess valuable information which may protect the lives of other members of the forces or civilians, for example the location of roadside bombs.
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8 February 2013 by Rosalind English
Sandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] 168 (Admin) – read judgment
In this highly publicised case, the Administrative Court has come up with some firm criteria for the scope of the Convention’s protective reach for UK citizens abroad. The judgment is also something of a body blow for those who are looking to the EU Charter of Fundamental Rights and Freedoms for a wider human rights umbrella.
Lindsay Sandiford, the 56 year old claimant, was arrested for drug smuggling in Indonesia and sentenced to death. She issued judicial review proceedings seeking an order requiring the FCO to provide and fund an “adequate lawyer” on the basis that she had not had proper representation in Indonesia. The broad basis of this claim was that the UK government should back up its opposition to the death penalty by putting its money where its mouth is.
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4 February 2013 by Rosalind English
Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment
The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.
This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.
Background
The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.
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1 February 2013 by Rosalind English
Denise McDonagh v Ryanair Ltd [2013] EUECJ C-12/11 (31 January 2013) – read judgment
“Congratulations! You have arrived on yet another ontime Ryanair flight. Ryanair – for the lowest fares and the best ontime record. Outstanding”
… or maybe not so outstanding.
On 11 February 2010, Ms McDonagh booked a flight with Ryanair from Faro (Portugal) to Dublin (Ireland) scheduled for 17 April 2010. On 20 March 2010, the Eyjafjallajökull volcano in Iceland began to erupt. On 14 April 2010, it entered an explosive phase, casting a cloud of volcanic ash into the skies over Europe. On 15 April 2010, the competent air traffic authorities closed the airspace over a number of Member States because of the risks to aircraft. Ms McDonagh’s flight was cancelled following the closure of Irish airspace. Ryanair flights between continental Europe and Ireland resumed on 22 April 2010 and Ms McDonagh was not able to return to Dublin until 24 April 2010. In the intervening week, no efforts were made by the airline to provide Ms McDonagh with the care to which she was entitled under the relevant EU Regulation No 261/2004, providing rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
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30 January 2013 by Rosalind English
Graiseley Properties Ltd and others (Claimants) v Barclays Bank Plc (Defendant); Various employees and ex-employees of Barclays Bank plc and Telegraph Group and others (interveners) [2013] EWHC 67 (Comm) 21 January 2013 – read judgment
The Commercial Court has resisted an application to anonymise those individuals at Barclays involved in the LIBOR scandal.
In his firm dismissal of the arguments Flaux J has confirmed the principle that anonymity orders will only be made in cases where the applicant for the order has established that it is strictly necessary for the proper administration of justice. The employees’ claim they should remain anonymous until trial failed at the first hurdle, “because they had simply not established by clear and cogent evidence, or at all, that the order they seek or any aspect of it is strictly necessary for the proper administration of justice.”
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30 January 2013 by Rosalind English
T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice [2013] EWCA Civ 25 – read judgment
The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.
Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.
See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own.
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25 January 2013 by Rosalind English
Michael Sims v Dacorum Borough Council [2013] EWCA Civ 12 – read judgment
This was a property dispute which broke out on the marriage breakdown of two joint tenants of council property. The wife who sought termination of the periodic secure joint tenancy by unilateral notice. The husband, as the other joint tenant still living in the property, maintained that he was entitled remain there as a sole tenant.
In fact, the point had already been settled in the case of Hammersmith and Fulham LBC v. Monk [1992] AC 478 which established that at common law, a periodic joint residential tenancy is terminated automatically, if one joint tenant, without the concurrence of the other joint tenant, or tenants serves a notice to quit on the landlord.
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R on the application of Save our Surgery Ltd v Joint Committee of Primary Care Trusts (Defendant) and Newcastle Upon Tyne Hospitals NHS Foundation Trust (interested party) [2013] EWHC 439 (Admin) – read judgment
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