Category: Case comments
10 April 2012 by David Hart KC
R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, 3 April 2012, Court of Appeal: read judgment
No, not a case about secret trials, but about the way in which newspapers can get hold of court papers in open oral hearings. And, as we shall see, it led to a ringing endorsement of the principle of open justice from the Court of Appeal, leading to production of the documents to the Guardian.
Bribery allegations against a London solicitor and a former executive of a Halliburton company, and extradition sought by the USA and keenly challenged by the defendants. Some lack of clarity as to why the Serious Fraud Office was not prosecuting the defendants. All in all, a tasty morsel for the Guardian to get its teeth into. It was allowed into the hearing, but then not allowed critical documents provided to the courts, including the written arguments submitted by the USA and the defendants, affidavits supporting the extradition, and various other letters and documents put before the court.
Why not?
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10 April 2012 by Isabel McArdle
BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM – 24027/07 [2012] ECHR 609 – Read judgment / press release
The European Court of Human Rights (Fourth Section), sitting as a Chamber, has found that five men accused of serious terrorist activities can be extradited from the UK to the US to face trial.
They had argued that their article 3 rights (article 3 prohibits torture, inhuman and degrading treatment) would be violated if they were extradited and convicted. A sixth man’s case has been adjourned pending further submissions from the parties to the proceedings.
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8 April 2012 by David Hart KC
A long saga with a very new twist which should make even the most strident critic of international courts think again.
On 12 December 1999, the Erika sank some 60 nautical miles off the Brittany coast, spilling some 20,000 tonnes of heavy fuel which in due course polluted some 400 km of the French coastline. On 24 May 2012, the Cour de Cassation is due to rule on whether Total is criminally liable for the spill. Previous courts (the Criminal Court of First Instance, and the Court of Appeal in Paris) had said that it was. But now Advocate-General Boccon-Gibod has recently advised the Cour de Cassation that Total has no criminal liability. The problem, as often with international environmental issues, particularly criminal ones, is the jurisdiction for the offence charged – can, in this instance, the French prosecute this crime, even though someone can also do so somewhere else? What better reason for the founding of an international environmental court – a forum where one tribunal can seek to enforce common rules against those responsible for major pollution, wherever the pollution occurs and wherever the parties may be resident.
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2 April 2012 by Guest Contributor
Austin & Others v. The United Kingdom, [2012] ECHR 459, 15th March 2012 – read judgment
The Grand Chamber of the ECtHR recently tackled the question of whether the police tactic of “kettling” (verb, UK, of the police – to contain demonstrators in a confined area) amounted to a deprivation of the liberty of four applicants within the meaning of Article 5(1) of the ECHR.
The facts of this case reveal a clash of perspectives between private and public interests. However, as the applicants argued, the deprivation of liberty cannot be justified by a wider public interest motive.
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30 March 2012 by Matthew Hill
Reynolds v United Kingdom [2012] ECHR 437 – read judgment
What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.
This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death.
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30 March 2012 by David Hart KC
R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government, Court of Appeal, 29 March 2012, read judgment
The CA has just held that Collins J was wrong to hold (per my previous post) that the local NGO had a legitimate expectation that the Secretary of State would decide an air pollution issue, rather than leave it to the Environment Agency. In a nutshell, the Inspector (and hence the Secretary of State) was entitled to change his mind on this issue. So the expectation crumbled, and so did this judicial review to quash a decision to allow a waste incinerator to proceed.
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29 March 2012 by David Hart KC
Berky, R (on the application of) v. Newport City Council, Court of Appeal, 29 March 2012, read judgment
Two first-instance cases last year (Buglife, and Broads) considered whether a defendant to a judicial review involving a European point can complain that the proceedings were not commenced “promptly” even though they were commenced within the 3 month time limit. Both judges decided that this argument could not be advanced, even though the wording in CPR rule 54.5(1) reads “promptly and in any event not later than 3 months.” The Court of Appeal has now (by a whisker) approved these cases, though there was a vigorous dissent on one important point from Carnwath LJ. The point was in one sense academic, because the Court thought there was no merit in the underlying proceedings, but the ruling is still important.
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29 March 2012 by Daniel Sokol
Gas and Dubois v France (2012) (application no 25951/07). Read judgment (in French).
The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other. And the Daily Mail goes off on another frolic of its own.
Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002. Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000. Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois.
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27 March 2012 by Rosalind English
Barr v. Biffa, CA, 19 March 2012, read judgment
The reverse suffered by the claimants in the noisy motor racing case case before the Court of Appeal last month was something of a body blow to common lawyers and environmentalists. So this latest development in nuisance litigation should be welcome news.
As David Hart’s report suggests, the Court of Appeal pulls no punches in its critique of the High Court judgment which dismissed the claims of 152 households on the basis that a landfill operator had abided by the terms of its permit. Reasserting the private law rights of individuals in nuisance actions, Carnwath LJ observes that this case has been
a sad illustration of what can happen when apparently unlimited resources, financial and intellectual, are thrown at an apparently simple dispute such as one about nuisance by escaping smells. The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then.
The common law, he notes, is best when it is simple. And in this judgement he returns nuisance to the simple statement of reciprocity and neighbourliness where it belongs.
There are a few propositions – not many – in Carnwath LJ’s judgment which will serve as a clear, short checklist for the viability of a nuisance action.
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27 March 2012 by David Hart KC
Kolyadenko v. Russia
EHCtR, 28 February 2012
This was the scene in the riverbed lying below a large reservoir near Vladivostok. There had been very heavy rain, causing the managers of the reservoir to let water through into that riverbed for fear that the reservoir might collapse. But the channel beneath was not exactly clear of obstructions, as the image shows. 6 flooded applicants obtained no redress in the Russian Courts, and had to go to Strasbourg to get damages – nearly 11 years after the flood in August 2001.
It might be thought that similar claimants here would not go uncompensated. But that is far from clear, as English law on flooding liabilities is by no means straightforward. Hence, the interest of the case, in which claims under Articles 2 (right to life), 8 (right to private and home life) and Article 1 Protocol 1 (right to possessions) were successful.
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22 March 2012 by David Hart KC
Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union, read judgment
Fulmen, as many of you will know, means thunderbolt in Latin. So it must have seemed when this Iranian company had its assets frozen. This case is a good example of how general principles of European law were applied to annul measures taken against these Iranian applicants. The measures were part of EU policy to apply pressure on Iran to end nuclear proliferation. Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian is a director of Fulmen. Hence they were both listed in Council Decision 2010/413/CFSP. The upshot was that all of their assets were frozen by the EU.
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21 March 2012 by David Hart KC
Kennedy v. Charity Commission et al, Court of Appeal, 20 March 2012, read judgment
Tangled web, this one, but an important one. Many will remember George Galloway’s Mariam Appeal launched in response to sanctions imposed on Iraq in 1998, and the famous picture of GG with Saddam Hussein. Well, the Appeal was then inquired into by the Charity Commission, and this case concerns an attempt by a journalist, unsuccessful so far, to get hold of the documents which the Inquiry saw. But the Commission took the 5th amendment – or rather, in UK terms, a provision in the Freedom of Information Act (s.32(2))which exempted from disclosure any document placed in the custody of or created by an inquiry. Cue Article 10 ECHR, and in particular the bits which include the freedom to receive information.
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19 March 2012 by David Hart KC
Barr v. Biffa, CA, 19 March 2012, read judgment
For the last year or so, the law of nuisance has been in a state of flux pending this appeal. In this case about an odorous landfill, Coulson J had ruled that compliance with the waste permit amounted to a defence to a claim in nuisance, and that a claimant had to prove negligence in the operation of the landfill before he could claim in nuisance. The Court of Appeal has today reversed this decision.
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15 March 2012 by David Hart KC
Welsh Ministers v. RWE Npower Renewables Ltd [2012] EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment
In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site. The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity to deal with his concerns.
So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.
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13 March 2012 by Karwan Eskerie
Vejdeland and Others v Sweden (Application no. 1813/07) – Read judgment
“Will both teacher and pupils simply become the next victims of the tyranny of tolerance, heretics, whose dissent from state-imposed orthodoxy must be crushed at all costs?”, asked Cardinal O’Brien in his controversial Telegraph article on gay-marriage. He was suggesting that changing the law to allow gay marriage would affect education as it would preclude a teacher from telling pupils that marriage can only mean a heterosexual union. He later insinuated that the change might lead to students being given material such as an “explicit manual of homosexual advocacy entitled The Little Black Book: Queer in the 21st Century.”
A few weeks before that article was published, the European Court of Human Rights handed down its first ever ruling on anti-gay speech, in a Swedish case where a group of young men, seemingly motivated by a similar abhorrence to that expressed by Cardinal O’Brien for the “tyranny of tolerance” in education, put a hundred or so leaflets in or on the students’ lockers at a secondary school. The leaflets read:
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R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, 3 April 2012, Court of Appeal: read judgment
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