Category: Case comments
23 July 2013 by Alasdair Henderson
Black and Morgan v. Wilkinson [2013] EWCA Civ 820 – read judgment here.
The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull [2012] EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court.
This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.
Continue reading →
Like this:
Like Loading...
20 July 2013 by Rosalind English
SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment
This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.
This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law.
Continue reading →
Like this:
Like Loading...
18 July 2013 by David Hart KC
Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, Court of Appeal, 18 June 2013 – read judgment
There is a curious if not bizarre set of anomalies about planning and environmental challenges. Where they involve an attack on a decision by the Secretary of State (typically in respect of a decision by a planning inspector after inquiry), the route is via section 288 of the Town & Country Planning Act 1990. There is a strict 6 week time limit, with no discretion to extend – but no need for permission to apply as in judicial review. But where there is a challenge to any other decision, the time limit (at the moment) is 3 months, with discretion to extend – but also a discretion to disallow if the application was not “prompt” even within the 3 months (see my post on this last point) and the permission hurdle to clear.
Yet in each case the substantive grounds are effectively the same – but to what extent should procedures differ other than those required by the statutory underpinning?
The conundrum in this case was – what to do about a set of grounds (drafted by lawyers) filed after the s.288 time limit, in substitution for grounds (by the clients doing it themselves) filed within the 6 weeks.
Continue reading →
Like this:
Like Loading...
11 July 2013 by David Hart KC
The UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J, 10 July 2013 read judgment
Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length – Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.
The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.
Continue reading →
Like this:
Like Loading...
9 July 2013 by David Hart KC
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 9 July 2013 – read judgment
As we all know, the Prince of Wales has his own opinions. And he has shared those opinions with various government departments. Our claimant, a Guardian journalist, thought it would be interesting and important for the rest of us to see those opinions. So he made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents.
No joy, says the Administrative Court. Yes, a tribunal had ordered production of the letters, but that order had been overridden by the Attorney-General. What, says anybody used to the idea that courts do their bit, and the government does its bit – that’s unfair, government cannot override what the courts say.
The complication, as we shall see, is that the override is built into FOIA.
Continue reading →
Like this:
Like Loading...
8 July 2013 by Rosalind English
Malik v Fassenfelt and others [2013] EWCA Civ 798 – read judgment
A common law rule that the court had no jurisdiction to extend time to a trespasser could no longer stand against the Article 8 requirement that a trespasser be given some time before being required to vacate:
The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect?
This was the question before the Court of Appeal in a challenge to a possession order requiring the removal of squatters from private land.
Although there is now some doubt as to whether the leading authority on landowners’ rights against squatters is still good law, Article 8 still does not entitle a trespasser to stay on the land for ever. At its highest it does no more than give the trespasser an entitlement to more time to arrange his affairs and move out.
Continue reading →
Like this:
Like Loading...
4 July 2013 by Rosalind English
Kirovogradoblenergo, Pat v Ukraine (Application no. 35088/07) 27 June 2013 – read judgment
Shortly after the break up of the Soviet Union, the Ukraine introduced an interesting piece of legislation called the Status of Judges Act.
Being a judge behind the Iron Curtain couldn’t have been much fun, and rendering the profession more attractive once society had opened up somewhat was probably one of the more pressing challenges facing the new regime. One of the chief provisions in the SoJA was to spare members of the judiciary from paying half their electricity bills. What this tells us about the status of judges before and shortly after the dissolution of communism is itself an interesting subject, but outside the scope of this post.
Continue reading →
Like this:
Like Loading...
2 July 2013 by David Hart KC
Bedford v. Bedfordshire County Council, 21 June 2013, Jay J – read judgment
On 29 May 2004, Bradley Bedford, then aged 13, was beaten senseless by one AH, then 15, whom he had the misfortune to encounter entirely by chance near the seaside in Torbay. AH was in a children’s home there which was contracted to the Defendant Council; AH was a “looked after” child under section 20 of the Children Act 1989. Bradley sued the Council for failing to protect him. His claim was limited to one under the Human Rights Act, and Article 8 ECHR in particular.
Jay J dismissed the claim on the grounds that (a) it was brought too late; (b) there was not a real and immediate risk of harm to Bradley of which the Council should have been aware; (c) even if there was, the local authority took reasonable steps to eliminate or substantially reduce any risk. All these rulings are of some interest.
Continue reading →
Like this:
Like Loading...
1 July 2013 by Rosalind English
Case C-131/12: Google Spain SL & Google Inc. v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González – read Opinion of AG Jääskinen
This reference to the European Court of Justice (CJEU) concerned the application of the 1995 Data Protection Directive to the operation of internet search engines. Apart from demonstrating the many complications thrown up by this convoluted and shortsighted piece of regulation, this case raises the fascinating question of the so-called right to be forgotten, and the issue of whether data subjects can request that some or all search results concerning them are no longer accessible through search engine.
All of these questions are new to the Court.
Continue reading →
Like this:
Like Loading...
29 June 2013 by Matthew Flinn
Hollingsworth v Perry – No. 12–144 – Read judgment
United States v Windsor – No. 12–307 – Read judgment
In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.
The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.
Continue reading →
Like this:
Like Loading...
27 June 2013 by Lauren Godfrey
Dumfries and Galloway -v- North [2013] UKSC 45 – Read judgment
Yesterday’s much heralded equal pay ‘victory’ in the Supreme Court (see BBC Report) undoubtedly will be good news for the specific female claimants in the case who seek to vindicate their European Union rights to equal pay.
The female claimants do so by comparing their pay with male colleagues working in entirely distinct parts of the same local authority (being Dumfries and Galloway Council) but arguably on common terms and conditions of employment (often referred to as the ‘same employment’ test).
However, in legal terms, arguably the unanimous Judgment delivered by Lady Hale in the Supreme Court is not quite so revolutionary. Many practitioners, outside Scotland at least, had anticipated its outcome.
Continue reading →
Like this:
Like Loading...
26 June 2013 by Rosalind English
CM v The Executor of the Estate of EJ (deceased) [2013] EWHC 1680 (Fam) – read judgment
You would have thought the law would be entirely behind a person who intervenes to help a stranger in distress. Indeed most civil law countries impose a positive duty to rescue, which means that if a person finds someone in need of medical help, he or she must take all reasonable steps to seek medical care and render best-effort first aid. A famous example of this was the investigation into the photographers at the scene of Lady Diana’s fatal car accident: they were suspected of violation of the French law of “non-assistance à personne en danger” (deliberately failing to provide assistance to a person in danger), which can be punished by up to 5 years imprisonment and a fine of up to 70,000 euros. But the position in common law countries like the UK and the United States is completely different: you can watch a child drown and not be held to account.
Of course no good citizen would do such a thing and in this case the claimant, a medical doctor, went out of her way to try to save the life of someone in extremis. She was driving home, off duty, in South East London, when she saw a body lying motionless on the pavement.
Continue reading →
Like this:
Like Loading...
25 June 2013 by David Hart KC
Cusack v. London Borough of Harrow [2013] UKSC, 19 June 2013 read judgment
This is the tale of how a solicitor from Harrow ended up litigating about his off-street parking in the Supreme Court – and reached for Article 1 of Protocol 1 (A1P1) of ECHR, by way of a second string to his bow. Not his choice, as he had won in the Court of Appeal on other grounds. But his failure on the point reminds us that in the majority of cases A1P1 is a difficult argument to bring home.
Mr Cusack had been parking his car in front of his premises since the late 1960s. He got temporary planning permission for his offices in 1973, but hung on when this expired and got established planning rights in 1976.
Continue reading →
Like this:
Like Loading...
22 June 2013 by David Hart KC
Bank Mellat v HM Treasury [2013] UKSC 39 (see judgment)
My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” [20]) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.
So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.
The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at [68] – [76] distils the main elements.
Continue reading →
Like this:
Like Loading...
21 June 2013 by Paul Reynolds
R(on the application of Christopher Wilford) v The Financial Services Authority [2013] EWCA Civ 677 – Read judgment
This Court of Appeal judgment further reduces the scope for judicial review of a Decision Notice issued by the Financial Services Authority (“the FSA”, now the Financial Conduct Authority). Indeed it comes close to excluding judicial review of these Notices. This is because there is a statutory mechanism for challenging Decision Notices. This case sheds light on the very limited role of judicial review where there is such a statutory right.
The FSA regulates the financial services industry. Its Regulatory Decisions Committee (“the RDC”) decides whether or not a regulated person has breached the relevant rules and issues Decision Notices.
Continue reading →
Like this:
Like Loading...
Recent comments