Media By: Rosalind English


Seriously sick child and distraught parents – where to draw the line

26 February 2018 by

Alder Hey Children’s NHS Foundation Trust v Evans, James and Alfie Evans (a child by his guardian Cafcass Legal) [2018] EWHC 308 (Fam) – read judgment

This was an application by the hospital for a declaration to allow their doctors to withdraw life support from a 19 month old child, Alfie. He suffers from a progressive, ultimately fatal neurodegenerative condition, probably a mitochondrial disorder. His epileptic seizures have not been brought under control by anti-convulsant treatment. The evidence before the court was that even if these seizures were to end, his brain is “entirely beyond recovery”. However caused, his neural degeneration is both “catastrophic and untreatable”.

In simple terms the thalami, basal ganglia, the vast majority of the white matter of the brain and a significant degree of the cortex have been wiped out by this remorseless degenerative condition.

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The right to be forgotten before the Courts again

21 February 2018 by

NT 1 & Anor v Google LLC [2018] EWHC 261 (QB) (15 February 2018) – read judgment

This was a Pre Trial Review of an application by the claimants to have details about an old criminal conviction and other information removed from Google and associated websites under the “right to be forgotten”. Each of the claimants sought orders prohibiting the defendant (Google) from continuing to return internet search reports which included information about the claimant which he claimed was inaccurate, stale, irrelevant, and thereby infringed his data protection and privacy rights.  The “right to be forgotten” is, in this context,  also referred to as “de-listing”. The two cases are due to be tried by Warby J at the end of February. In order to avoid an own goal at trial, where those very names and convictions would be made public, the parties sought to come up with forms of pseudonym or cipher that would protect them. One proposal was that

 in the NT1 case a co-defendant of the claimant at his criminal trial in the late 1990s should be referred to as “Mr A”, and that certain offshore companies used by NT1 should be referred to as “Companies A and B”. There are also references to “Businesses A, B, C, D, E, F, G and H”. In the NT2 case, the claimant also had a co-defendant, and the proposal is to call him “Mr A”. This is not the same person as the “Mr A” in the NT1 case. “Company A” in the NT2 case is a cipher for “The business in which the claimant [NT2] previously had an interest.” It is not the same as Company A in the NT1 case. The Confidential schedule in the NT2 case also features “Companies F, G, H, I, J, K and H” which are all different from any of those that feature in the NT1 claim.

Warby J was unimpressed with this alphabet soup. He did not relish the prospect of preparing a judgment, or two judgments, using these ciphers.
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Where are we now on social services liability?

19 February 2018 by

CN and Anor v Pool Borough Council [2017] EWCA Civ 2185, 21 December 2017 – read judgment

Just over six weeks before the Supreme Court ruled that the police owed the public a duty of care in Robinson (see our post here) the Court of Appeal had unanimously rejected the existence of such a duty in the context of social services and vulnerable children. Giving the leading judgment, Irwin LJ said that there were two strong reasons for rejecting the claimants’ case.

 [F]irst is the concern, articulated in X v Bedfordshire in relation to social services and in Hill v West Yorkshire in relation to the police, that liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making. The second is the principle that, in general, there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. Both of these considerations, in my view, bite on the facts in this case.

In his concurring judgement, Davis LJ observed that “nothing in this case as pleaded requires or justifies it going to a full trial.”

The claimants have sought permission to appeal to the Supreme Court.
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Two new podcasts on Law Pod UK

14 February 2018 by

The second in Professor Catherine Barnard’s series on the legal milestones of the Brexit process is now up on iTunes and Audioboom. And today we have posted Isabel McArdle talking to Rosalind English about the Supreme Court ruling on police liability in Robinson v West Yorkshire Police.

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. 

“Genetic affinity” an actionable head of damage against IVF clinic

14 February 2018 by

ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal  [2017] SGCA 20 – read judgment

It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology.  This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest  in the area of medical science,

where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.

Background facts

The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred  to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed  to discard the disposable pipettes that had been used after each step of the IVF process.  This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s.
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Instagramming your claim form: valid service?

6 February 2018 by

In order to set a claim under way in the civil courts, it is necessary to serve the claim form on the party named as defendant.  The service rules were good fodder for the likes of Dickens or Trollope as they set their tipstaffs in pursuit of the hapless seeking to escape the Marshalsea or similar; things became rather more mundane when society became too populous for personal service.

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Water into gas should not go

3 February 2018 by


Southern Gas Networks Plc v Thames Water Utilities Ltd 
[2018] EWCA Civ 33, 25 January 2018 – read judgment

When the supply of gas to your house fails, you are entitled to compensation from the gas undertaker for the inconvenience. If that failure has been caused by another utility’s burst water main, the gas undertaker may seek to recoup its expenses for repair to its own infrastructure and the compensation it has had to pay out to consumers. A simple enough picture.

But behind this straightforward seeming network of liabilities is a labyrinth of common law and statutory relationships whose exploration is not for the faint hearted.  As society’s dependence on the provision of energy, water and sewage services grew, during the Industrial Revolution and beyond, parliament had to think of ways to level the playing field between these increasingly centralised powers. This is not a trend that will go away, as the gas, electricity and fibre optic cables become ever more essential to the way we live our lives.
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Life sustaining treatment – whose decision?

31 January 2018 by

Kings College Hospital NHS Foundation Trust v Thomas and others [2018] EWHC 127 (Fam) – read judgment

Updated: The Court of Appeal has now ruled that doctors at King’s College hospital, London, could remove Isaiah from the ventilator that has kept him alive since he was deprived of oxygen at birth and sustained catastrophic brain injury. The judges also refused the parents permission to appeal against this ruling. McFarlane LJ said

This case is not about the parents or their hopes. It is and must firmly be about Isaiah and his best interests.

Parental love is to be cherished by society, particularly when a child is sick. But the “flattering voice of hope” is not always in best interests of the object of that love.  So concluded MacDonald J in a recent ruling which has attracted considerable media attention. The judge concluded that it was not in the 11- month old boy’s best interests for life-sustaining treatment to be continued. He was satisfied on the evidence of the court, he said, that the boy, Isaiah, had

 no prospect of recovery or improvement given the severe nature of the cerebral atrophy in his brain

and that he would remain “ventilator dependent and without meaningful awareness of his surroundings”

Perhaps with the Charlie Gard publicity in mind, MacDonald J was careful to emphasise the weight of the medical evidence as against the parents’ assessment of the boy’s condition. The publicity sparked by this case has led to visits to the child by other medical professionals. There are some forceful concluding remarks in this judgement about the inappropriate nature of these possible “clandestine examinations”. These are now a matter for the police.

The judge also rejected the argument that the court should hear evidence from “foreign” experts on the approach from which other cultures might approach this question in terms of its ethics and outcome.  There was a “world of difference” between medical expertise from abroad and a foreign “expert” who simply takes the view that the medical or ethical approach to these issues in this jurisdiction differs from that in their own practice.

It would be extremely unfortunate if the standard response to applications of this nature was to become one of scouring the world for medical experts who simply take the view that the medical, moral or ethical approach to these issues in their jurisdiction, or in their own practice is preferable to the medical, moral or ethical approach in this jurisdiction.

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Deportation of foreign criminals: out of country appeals still lawful

18 January 2018 by

Nixon & Anor, R (On the Application of) Secretary of State for the Home Office [2018] EWCA Civ 3, 17 January 2018 – read judgment

The Court of Appeal has refused a judicial review application and permission to appeal in two cases where the applicants were required to pursue their challenges to deportation “out of country” rather than in the UK.  Where the Secretary of State has rejected a human rights claim, and deportation is considered in the public good – because the deportee is a foreign criminal – there has been debate about the effectiveness of an out-of-country appeal .

Background

The facts of this case are similar to the case of R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020. In each case, the appellant was threatened with deportation as a result of offending, but he contended that deportation would be in breach of his right to private and/or family life under article 8 of the ECHR. We posted on Kiarie and Byndloss here.  The Court of Appeal held in that case that the Secretary of State could properly proceed on the basis that an out-of-county appeal would meet the procedural requirements of article 8 in the generality of deportation cases, because such an appeal met the essential requirements of effectiveness and fairness.   The Supreme Court reversed  the ruling on the specific facts of the case before them. But their conclusion – that in the cases of Kiarie and Byndloss, the out-of-country appeal procedures were inadequate – does not affect all cases thus certified. All questions of adequacy of evidence and video links have to be considered on a case by case basis, taking into account the efforts made by the individual applicant to advance their case. Not all decisions depriving people of the right of appeal from the UK will be unlawful; it depends on the facts. 
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Legal Milestones on the route to Brexit: Catherine Barnard

17 January 2018 by

In the cooperative spirit of podcasting, Professor Catherine Barnard of Cambridge University has kindly agreed to allow Law Pod UK to repost the enlightening podcasts from her series 2903CB, charting the transitional stages that need to be negotiated as we progress towards 29 March 2019, when the UK will be no longer part of the EU (CB being Catherine Barnard). Here’s the first one: UK Law Pod No 21: Outlining the legal milestones to Brexit, also available as part of the UK Law Pod series on iTunes.

We hope to continue to rebroadcast her series, along with our own output of interviews and seminars from 1 Crown Office Row on all manner of subjects.

Listen up! Thoughts on gender segregation and urban development

21 December 2017 by

We have two new podcasts up on iTunes Law Pod UK.

Charlotte Gilmartin if you remember recently unpacked the planning dust-up  over the Eagle Wharf redevelopment in Regent’s Canal in her recent post on the High Court judgment. More on this important decision and its implications for planners in her discussion here.

And the case of the Islamic state school of Al-Hijrah in Birmingham which attracted so much attention when the High Court ruled in favour of Ofsted’s critical report continues to make waves. Rajkiran Bahey analysed it here and ponders the many issues involved in discussion with Rosalind English here.

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. 

MOD to compensate Iraqis for “ill treatment”

18 December 2017 by

iraq war human rights compensation civilian Camp Bassa compensation damages conflict of laws international humanitarian law

Aseran and others v Ministry of Defence [2017] EWHC 3289 (QB) 14 December 2017 – read judgment

The High Court has upheld claims by four Iraqi civilians that their human rights had been breached by the British army. Their claims in tort were rejected as time-barred.

These were four claims in the large scale action known as the Iraqi civilian litigation. This judgment follows the first full trials of civil compensation claims in which the claimants themselves and other witnesses testified in an English courtroom. The introduction given by Leggatt J best explains the picture.

The claimants in these cases are Iraqi citizens who allege that they were unlawfully imprisoned and ill-treated …by British armed forces and who are claiming compensation from the Ministry of Defence. Questions of law raised by the conflict in Iraq, some of them novel and very hard questions, have been argued in the English courts and on applications to the European Court of Human Rights since soon after the conflict began. Until now, however, such arguments have taken place on the basis of assumed facts or limited written evidence.

The four claims were tried as lead cases out of more than six hundred remaining cases. All the claims were advanced on two legal bases. The first was the general law of tort under which a person who has suffered injury as a result of a civil wrong can claim damages from the wrongdoer. Because the relevant events occurred in Iraq, the Iraqi law of tort was applicable. But the claims were subject to a doctrine known as Crown act of state which precludes the court from passing judgment on a claim in tort arising out of an act done with the authority of the British government in the conduct of a military operation abroad.
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Undercover police officers: how far does their legal liability go?

8 December 2017 by

TBS v Metropolitan Police Commissioner [2017] EWHC 3094 – read judgment

The High Court has refused an application to strike out a claim in negligence and misfeasance in public office taken by someone born as a result of a liaison between an activist in the animal liberation movement and a man who subsequently turned out to be an undercover police officer.

Although this is not a full trial of the merits, the ruling from Nicol J triangulates on very interesting questions relating to “wrongful life” claims, legal duties owed by people in public office, and the predictability of harm as well as the identity of potential victims. It also touches on the character of psychiatric harm, and how difficult it is to identify the point at which it can legitimately be said to arise. Whatever the results of the ultimate litigation, the arguments here raise sharp questions of public policy as to who, and what, should be compensated from the public purse. There is also a deep philosophical question underlying the whole argument which is known as the “non-identity problem”. Can you harm somebody by bringing them into existence?
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Supreme Court rules on time limitation for claims under the Human Rights Act

6 December 2017 by

O’Connor (Appellant) v Bar Standards Board (Respondent) [2017] UKSC 78  – read judgment

The Supreme Court has ruled that a barrister’s claim against the Bar Standards Board for discrimination should not be time barred under the one year limit prescribed by the Human Rights Act. In her case, the Court said,  the time limit for bringing proceedings only started running when she successfully appealed against disciplinary action taken against her. The decision to bring disciplinary proceedings and the subsequent hearings were part of a single process, not a series of disparate acts which set the time limitation period running.

The Court also concluded that the High Court judge was correct to conclude that the appellant’s claim of indirect discrimination in respect of her right to be treated equally under the law (Articles 14 and Article 6) did have a real prospect of success.

The following report is based on a combination of the full judgment and the Supreme Court’s press summary.

 

Background facts and law

Ms O’Connor is a practising barrister who faced a number of disciplinary charges brought against her by the Bar Standards Board in 2010. In May 2011, the Disciplinary Tribunal found most of these charges proved. The appellant, who is black, appealed to the Visitors of the Inns of Court and in August 2012 her appeal was allowed on the basis that none of the alleged conduct involved any breach of the Bar Code of Conduct.

In February 2013, the appellant issued the present proceedings, which included an allegation of violation of Article 14 of the ECHR together with Article 6. She claimed that the BSB, by bringing the disciplinary proceedings. had discriminated against her on racial or ethnic grounds. In particular, she alleged that the respondent had infringed her right to a fair trail on grounds of race.

Since this was a claim under section 6 of the Human Rights Act 1998 the limitation provisions under that Act applied. The BSB maintained that this claim was time – barred under section 7(5)(a) of the 1998 Act which provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place.

Shortly afterwards the respondent sought to strike out the case on the basis that none of the appellant’s had any real prospect of success and, in any event, there was a complete defence under section 7(5)(a) . Although the strike out was initially successful, on appeal Warby J in the High Court held that there was a sufficiently pleaded case that the respondent had indirectly discriminated against the appellant. However, he also held that the claim was indeed time – barred under the Human Rights Act.
The Court of Appeal held that the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the appellant proved and so had expired before she had issued her claim.
The appeal essentially turned on one question: when the ‘prosecution’ of the appellant commenced .  If it started with the decision to bring proceedings was taken in 2010 then the one – year time limit had expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant was considered to be a continuing state of affairs up to the tribunal decision, time under section 7 only expired in May 2012, which meant that her discrimination claim was in time.
It was argued on behalf of the respondent that the decision to refer the appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one – off act with potentially continuing consequences rather than a continuing violation.

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Animal welfare after Brexit: adjustable upwards or downwards

30 November 2017 by

Updated: Brexit, Article 13, and “animal sentience” in law (28 November 2017) –    Animal Law’s Expert Briefing Note

In November 2017  a vote took place in the House of Commons on a proposed amendment to the EU (Withdrawal) Bill. The Commons Library briefing paper was published on 7 December: Animal Sentience and Brexit.  The amendment  sought to incorporate into UK law a provision in the European treaty that stated the EU and its member States “shall, since animals are sentient beings, pay full regard to the welfare requirements of animals” when formulating and implementing the EU’s policies.  The vote was defeated by 313 to 295 votes.

The story of this debate has prompted a great deal of comment in newspapers and on social media, mostly critical of the UK Government’s position. The coverage reflects much of the prejudice and confusion attaching to animals reared for our use, be it for medical therapy, food or companionship. That is to be expected. But what is less excusable is that most of the coverage was  based on misunderstandings of both the Treaty Article and other EU provisions relating to animals.

So may I put in a plea for anyone who is interested to read the clear and balanced account of this issue set out by the UK Centre for Animal Law in their Briefing Note, which I will attempt to summarise here. I do urge reading the original document, which is an excellent summary of the legal and factual issues involved.

A quick reminder

When the Brexit vote came in, I wrote a post under the heading of One Trade Freedom We can Do Without. Maybe not tactful timing then, but this question is now ripe for consideration, with DEFRA secretary Michael Gove promising better protections for animals raised for food, and even for companion animals such as dogs and horses, once they are no longer trapped in the imperative of free movement of goods under the EU Treaty provisions.
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