Media By: Rosalind English


Sensitisation to allergy is physical injury – Supreme Court

23 March 2018 by

Dryden and Others v Johnson Matthey [2018] UKSC 18 – read judgment 

We are all made of stuff, and that stuff is not inert because it’s organic matter. Changes at the molecular level happen all the time, through cell death and replenishment, growth and the constant attrition caused by cosmic radiation on our DNA.  Other changes are wrought by the environment or other organisms. Some changes are beneficial, even life saving, such as the removal of an appendix or the insertion of a pacemaker.  The production of antibodies by vaccination have eradicated many diseases.  Most of the time the body manages this itself.  Every time certain cells in the blood encounter a foreign invader, they recruit the immune system to come up with a focussed weapon. This is an antibody, which lies dormant until the threat (the antigen) arises again.  Antibodies are good things to have around until they’re provoked by enemies akin to the ones that created them, whereupon the body produces an allergic reaction to get rid of the toxin/allergen.

So, does the triggering of an antibody (an immunoglobulin molecule) constitute tortious injury, sounding in damages? This is the question raised by this case, and it goes to the heart of what “injury” is for the purposes of the law.
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Who is it that doesn’t like Mondays?

18 March 2018 by

Moylett v Geldoff and Another (unreported)  Chancery Division (Carr J) 14 March 2018

Music nerds may remember with fondness the great copyright wrangle involving Procul Harum and Bach.   The focus of that dispute was the organ line in the 1967 hit Whiter Shade of Pale, and  Blackburne J’s judgment is imperative reading for anyone interested in the law’s dominion over music, ideas or intellectual property in general. Go to the end of this post for a reminder of that entertaining litigation and its outcome.

Less esoteric but potentially as interesting is this application brought before Carr J in the Chancery Division by the “well known music band”, the Boomtown Rats.
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New episode of Law Pod UK

15 March 2018 by

In our continuing reposts of Professor Catherine Barnard’s series on the legal steps to Brexit, we have reposted  her episode on the Draft EU Withdrawal Agreement – the Brexit political agreement turned into a legal document. Professor Barnard gives Boni Sones her own analysis of the text.

Listen to Episode 25 of Law Pod UK now.

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. 

Listen Up! New episode of Law Pod UK just posted

7 March 2018 by

Our very own Commissioning Editor, Jonathan Metzer, is discussing with Rosalind English the right of appeal against refusal of a residence card under the EU immigration rules for family and extended family members of UK citizens. He has also written a post on this and the reference to the European Court of Justice in  Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC)  .

Listen to Episode 24 Law Pod UK on Audioboom 

Law Pod is also available for free download in 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

Worboys and Ullah: Do UK Courts have to follow Strasbourg to the letter?

2 March 2018 by

Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11read judgment

Matthew Flinn covered this Supreme Court case in his excellent analysis here. I focus on one point of disagreement between the judges, which is whether a court, before holding that the state owes an investigative duty for the actions of private parties, would require the clearest statement in consistent decisions of the European Court of Human Rights.

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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.

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