Category: Case comments
4 January 2011 by Adam Wagner
Quila & Ors v Secretary of State for the Home Department & Ors [2010] EWCA Civ 1482 – Read judgment
A key part of the government’s strategy to combat forced marriages, preventing people under the age of 21 from entering the country to marry, has been heavily criticised by the Court of Appeal.
The decision shows that even policies which pursue a legitimate and laudable aim must still be a proportionate to the problem they seek to address, or risk breaching the human rights of those affected. But it also highlights how difficult it is to set effective policies to combat hazardous arrangements which can involve rape, child abuse and domestic violence, and affect thousands of UK residents annually.
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29 December 2010 by Adam Wagner
Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010) – Read judgment
The Court of Appeal has ruled that the family of a drug smuggler who died after being poisoned by 116 swallowed cocaine packages can bring a human rights claim against the state, despite his criminal behaviour.
The decision will anger those who say that the Human Rights Act is no more than a villains’ charter, doing more to protect the rights of “asylum seeker death drivers” and the murderers of headmasters. However, the court has done no more than confirm the basic principle that human rights are for all, not just for people we like.
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24 December 2010 by Guest Contributor
Don't step on them
Last year I blogged about Mrs Clift winning a claim for defamation against Slough Borough Council. The facts are in the earlier post. Slough’s appeal was rejected by the Court of Appeal in Clift v Slough Borough Council [2010] EWCA Civ 1171.
While the point in issue was whether Slough could rely on a defence of qualified privilege against Mrs Clift’s claim, I think the decision has wider implications and is therefore relevant to housing practice. The court’s reasoning on Article 8 of the ECHR should be familiar to housing lawyers. In the court’s view, the publication of damaging allegations about Mrs Clift interfered with her rights under Article 8(1) and the council was therefore bound not to pass those allegations on unless in doing so Article 8(2) was satisfied – which it manifestly was not in Mrs Clift’s case. Via some relatively complex reasoning related to the ways in which qualified privilege has been analysed by the courts, this meant the council could not raise the defence and so their appeal was lost.
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23 December 2010 by Adam Wagner
Legal Services Commission v Humberstone, R.( On the application of) [2010] EWCA Civ 1479 (21 December 2010) – Read judgment
The high court was right to quash the decision of the Legal Services Commission not to recommend public funding for a mother to be represented at the inquest into the death of her 10-year-old son. However, the court of appeal has ruled that the judge’s conclusions on when the state was obliged to conduct an expanded inquest into a death were confused.
The court of appeal has upheld the decision of Mr Justice Hickinbottom in the high court, although Lady Justice Smith came to her decision by a different route and criticised his reasoning. The case is important as it lays down guidelines for when legal representation for relatives of the dead should be funded at inquests, an often controversial issue, and how this fits with the state’s duties to investigate deaths under the European Convention on Human Rights. These duties have, partly as a result of Mr Justice Hickinbottom in this case, fallen into confusion, and the court of appeal has given a welcome clarification.
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21 December 2010 by David Hart KC
Smartsource v Information Commissioner + 19 other parties [2010] UKUT 415 (AAC) 23rd November 2010 – read judgment
Ibsen’s Enemy of the People has Dr Stockmann complaining to his Norwegian municipality about contamination of its water supply. We think that these sorts of disputes are part of a modern problem, so it is striking to find Ibsen being invoked, judicially, in this far from 19th century fight about environmental information.
The question was the less than dramatic one as to whether information about water and wastewater billing etc was environmental information, and that in turn involved deciding whether water companies and sewage undertakers were “public authorities”. Ibsen might not have found that answer too difficult to provide: what local authorities used to do in the 19th century and much of the 20th century, here, in Norway, and elsewhere, included supplying you with clean water and taking away your foul water.
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20 December 2010 by Rosalind English
R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment
The development of the principles of access to justice in environmental cases moves on apace.
This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.
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16 December 2010 by Rosalind English
O’Donoghue and Others v. the United Kingdom(application no. 34848/07):
The government’s system for preventing sham marriages as an entry ploy for immigrants breached the right to marry and was discriminatory – read judgment.
By the time this case was lodged the Certificate of Approval Scheme had been much diluted by a series of amendments, but even so the Court found itself to be “gravely concerned” with the policy. This, along with the surprisingly lenient approach to the applicants’ failure to exhaust local remedies, suggests that the Court was anxious to address what it sees as endemic problems in the UK’s border control policy. If states want to use impediments to marriage as an entry deterrent, it says, then they must face being rapped with the Article 12 stick.
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15 December 2010 by Caroline Cross
PF and EF v UK (Application No. 28326/09) – Read judgment
The European Court of Human Rights has dismissed an application brought against the police in Northern Ireland by a mother and her daughter who argued the police had failed to take sufficient action to protect them from loyalist riots on their route to primary school.
The court held that the police must be afforded a degree of discretion in taking operational decisions, and that in this case the police took all “reasonable steps” to protect the applicants.
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9 December 2010 by Rosalind English
The Child Poverty Action Group (Respondent) v Secretary of State for Work and Pensions(Appellant) [2010] UKSC 54 – Read judgment / press release
The Supreme Court has ruled that where benefits are overpaid as a result of a mistaken calculation, the department responsible cannot claim these amounts back via the common law route of restitution; the Secretary of State’s only recourse is via Section 71 of the Social Security Administration Act.
The following summary is taken from the Supreme Court site’s Press Release, with my comment below:
This appeal concerns the question whether, in cases of social security benefit awards mistakenly inflated due to a calculation error, the Secretary of State is entitled to recover sums overpaid under the common law of unjust enrichment or whether section 71 of the Social Security Administration Act 1992 (the “1992 Act”) provides the only route to recovery (nb. the Supreme Court press summary wrongly refers to the Social Security Benefits Act 1992).
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8 December 2010 by Rosalind English
This time two years ago two obscure environmental groups, Clientearth and the Marine Conservation Society , took a step that may make more difference to the enforcement of environmental rights in this country than all the recent high-profile “green” NGO campaigns put together.
They submitted a complaint – euphemistically called a “communication” – to the enforcement body of the Aarhus Convention, a treaty which lays down baseline rules for proper environmental justice in the EU, alerting it to various shortcomings in the legal system of England and Wales (inelegantly but conveniently referred to in the report as E & W).
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6 December 2010 by Rosalind English
This morning we reported on the case of Sinclair Collis Ltd v Secretary of State for Health & Anor [2010] EWHC 3112 (Admin) – see Isabel McArdle’s post on the case. Rosalind English analyses the implications of the High Court’s decision.
Hard on the heels of Petsafe, the administrative court has been asked once again to give close attention to Article 36 TFEU and member states’ scope for imposing restrictions to free movement of goods (see our post on the “health of animals” derogation). It seems that human health is such a core value of the common market that any reference to it by way of justifying a ban or restriction on goods or services is very hard to resist, particularly when the step is one taken by the legislature rather than the executive.
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3 December 2010 by Guest Contributor
The Supreme Court yesterday handed down judgment in the case of Joseph v Spiller ([2010] UKSC 53), the first time it has considered a libel case since its inception. The panel consisted of Lords Phillips, Rodger, Walker and Brown and Sir John Dyson. There is the usual useful press summary. The background to the case has already been covered in a previous case preview on this blog and the background facts and the case history are not repeated in this post.
Despite branding the underlying dispute between the Motown Tribute Band “the Gillettes” and their entertainment booking service a “considerable … storm in a tea-cup”, the Supreme Court have broadened the scope and application of the defence of fair comment. The Supreme Court did so by reducing the burden formerly placed on defendants to identify facts they are commenting on with ‘sufficient particularity’. Lord Phillips also re-named the defence as “honest comment” (as opposed to Court of Appeal in BCA v Singh [2010] EWCA Civ 350, which favoured “honest opinion” [35]) and called on the Law Commission to consider and review the present state of the defence.
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2 December 2010 by Adam Wagner
Cromwell looks on
Chaytor & Ors, R v (Rev 2) [2010] UKSC 52 (01 December 2010) – Read judgment
Updated | The Supreme Court has dismissed the appeal of four men accused of fiddling their Parliamentary expenses. In doing so, it has provided a powerful statement of the limits of Parliamentary privilege against court interference, and of its own powers in our separation of powers system.
The background to the case is set out in my post on the Court of Appeal case. The basic summary is that three ex-MPs, Morley, Chaytor and Devine, and one member of the House of Lords, Lord Hanningfield, are charged with false accounting relating to their parliamentary expenses claims.
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2 December 2010 by Rosalind English
R (on the application of Zagorski and Baze) v Secretary of State for Business, Innovation and Skills and Archimedes Pharma UK Ltd – read judgment
The Administrative Court has put down a marker on the potential applicability of the EU Charter of Fundamental Rights about the morality of certain trade with the United States. The case concerned the export of Sodium Thiopental, an anaesthetic drug that is used as a preliminary to the lethal injection for prisoners on death row. This is the first time a domestic court has made a definitive ruling on the potential role of the EU Charter in domestic law. Earlier this year the Court of Appeal referred a question on the Charter to the ECJ for determination on its relevance to asylum proceedings: see R (S) v Home Secretary & (1) Amnesty International & AIRE Centre (2) UNHCR and our post on the subject.
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2 December 2010 by Matthew Flinn
In January of this year Paul Chambers used Twitter to express his feelings about the possible closure of Robin Hood Airport due to snow, which he feared would thwart his trip to Belfast to meet his new girlfriend, a fellow twitterer going by the name @Crazycolours.
He said via his @pauljchambers Twitter account:
Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!
The consequences of his tweet were summarised in the Guardian:
A week later, he was arrested at work by five police officers, questioned for eight hours, had his computers and phones seized and was subsequently charged and convicted of causing a “menace” under the Communications Act 2003 .
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Quila & Ors v Secretary of State for the Home Department & Ors [2010] EWCA Civ 1482 – Read judgment
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