Category: Case law
7 November 2014 by Michael Deacon
R (on the application of FI) v Secretary of State for the Home Department [2014] EWCA Civ 1272 – read judgment
The Court of Appeal has held that the physical restraint of persons being removed from the UK by aircraft is subject to a sufficient framework of safeguards to fulfil the state’s obligations under Articles 2 and 3 of the European Convention on Human Rights. Further, the decision of the Home Secretary not to publish aspects of the applicable policy on the use of such control and restraint is lawful.
FI was restrained by detainee custody officers during an attempt to remove her from the UK in 2011, though the issues on this appeal did not turn on the specific circumstances of her case. In issue was the sufficiency of the framework of safeguards on the use of such restraint as contained predominantly within the Use of Force Training Manual (the “Manual”).
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5 November 2014 by David Hart KC
Bank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 – read judgment UPDATED POST
Fireworks here from Collins J in making sure that Bank Mellat got some disclosure of information in its fight to discharge a financial restriction order against it.
Bank Mellat is an Iranian bank, initially singled out by an 2009 order which prohibited anybody from dealing with it. The order was part of sanctions against Iran in respect of its nuclear and ballistic missiles programme. However, it bit the dust, thanks to the Supreme Court: see judgment. I did a post on that decision, and followed it up with one (here) on the (dis)proportionality arguments which led to the order’s downfall.
However the Bank was subject to two further orders, made in 2011 and 2012. They led to the freezing of €183m held by it in London. The 2012 order has since been revoked, but the 2011 one remains. This is the subject of the Bank’s application to set it aside. On any view, as Collins J recognised, it had caused very serious damage to the Bank’s business.
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6 October 2014 by David Hart KC
Hansen v. Norway, ECtHR, 2 October, read judgment
In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.
You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.
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27 July 2014 by
R(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin) – read judgment
When will a court order an inquiry into the deaths in combat of soldiers serving overseas? Following recent judgments of the English and Strasbourg courts extending the application of the European Convention on Human Rights to zones of armed conflict overseas in certain circumstances, the question is likely to arise frequently over the coming years. In R(Long), the Divisional Court strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin.
This claim involved the deaths of six military police, who were murdered by an armed mob in Majar-al-Kabir, Iraq on 24 June 2003. They were visiting an Iraqi police station and, contrary to standing orders, did not have an iridium satellite telephone with them. The Oxfordshire Coroner had previously held an inquest into the deaths, which opened in 2004 and closed with an unlawful killing verdict on 31 March 2006. He dealt with the lack of effective communications equipment in a Rule 43 report (now a Report to Prevent Future Deaths), but it could not be said in the circumstances that, had they had a radio, their lives would have been saved. As the coroner said, the only person who might have been able to help them in time was the commander of a nearby paratroop patrol and he thought it possible that “had he endeavoured to help, I would be holding an inquest into the deaths not of six brave men but of 18” – [49].
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27 July 2014 by David Hart KC
DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 2493 (QB), Green J – read judgment
This is an important summary of the principles applicable to HR damages, particularly in circumstances where there have been other payments already made arguably in respect of the acts in question. So it should be first port of call if you have an HR damages problem, not least because it gathers all the learning together.
Green J decided in March 2014 that the police had a duty to conduct investigations into particularly severe violent acts in timely and efficient manner, and that there had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so-called “black cab rapist”, one John Worboys. This amounted to a breach of the of the victims’ rights under Article 3 of the ECHR. See Rosalind English’s post on the liability judgment here
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23 July 2014 by David Hart KC
Coventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment
Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases. Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.
Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small” local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.
Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.
In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).
So each case is about a costs burden, which is capable of causing injustice to one or other party.
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20 July 2014 by David Hart KC
O (R o.t.a) v. Secretary of State for International Development [2014] EWHC 2371 (QB) 14 July 2014 read judgment
One proposal of the Lord Chancellor on reforming judicial review last year was the narrowing of the tests for standing, namely the ability to come to court and complain about some public law unlawfulness: see, e.g. here. The idea of statutory reform of standing was later shelved, but the current case is an interesting example of the Government probing the boundaries of the tests laid down by the courts.
The underlying dispute concerns the funding of international aid to Ethiopia by DFID. Mr O is an Ethiopian citizen who says he was the victim of human rights abuses in the course of a programme to re-settle villagers in new and larger communes – this programme (the Commune Development Programme or CDP) is said to involve forced internal relocation. As a result, O fled to Kenya, leaving his family behind. There is evidence of widespread human rights abuses perpetrated in this process of “villagisation”.
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16 July 2014 by Matthew Flinn
S.A.S v France (Application no. 43835/11) – read judgment
The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.
On 11th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).
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15 July 2014 by David Hart KC
Public Law Project v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary
Angela Patrick of JUSTICE has provided an excellent summary of this important ruling, which declared a proposed statutory instrument to be ultra vires the LASPO Act under which it was to have been made. The judgment is an interesting one, not least for some judicial fireworks in response to the Lord Chancellor’s recourse to the Daily Telegraph after the hearing, but before judgment was delivered.
But more of that after some thoughts on the discrimination ruling.
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15 July 2014 by Guest Contributor
PLP v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary
As the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in PLP v Secretary of State for Justice.
While we are all following the exciting live feeds on both the reshuffle and the progress of emergency legislation on surveillance, the freshly appointed Attorney General, Jeremy Wright MP, may want to cast his eyes to BAILLI.
The Administrative Court may this morning have handed him one of his first “to-do” list items. In – PLP v Secretary of State for Justice – a rare three judge Divisional Court has held that the Government’s proposal to introduce a residence test for legal aid – where all applicants will have to prove 12 months continuous lawful residence in the UK – is both ultra vires and discriminatory.
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13 July 2014 by David Hart KC
Breyer Group plc and others v Department of Energy and Climate Change [2014] EWHC 2257 (QB) – Coulson J read judgment
This is an important judgment on governmental liability for a rather shabby retrospective change of the rules about subsidies for photovoltaic schemes. The Court of Appeal had decided in 2012 that the changes were unlawful: see judgment and my post here. The question in Breyer was whether businesses could obtain damages under A1P1 arising out of the Secretary of State’s decision. Though the judgment proceeds on a number of assumed facts, some critical findings of law were in favour of the businesses.
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10 July 2014 by Alasdair Henderson
P (A Child) [2014] EWCA Civ 888 – read judgment here.
1 Crown Office Row’s Martin Downs represented the parents in this appeal (not at first instance), but is not the author of this blog post.
In this successful appeal against care and placement orders in respect of a young infant with Polish parents, the Court of Appeal were sharply critical of comments made by the first instance judge which made it clear he had closed his mind at an early stage to the possibility of the baby being looked after by her grandparents in Poland. The Court held that both the judge and the local authority had failed to give sufficient weight to their positive obligation under Article 8 to consider ways of retaining a child within the family.
The parents in this case were Polish nationals who moved to England in 2011. Their daughter was born in September 2012. For the first five-and-a-half months of the little girl’s life, there were no concerns about the care she was receiving from her parents. However, in February 2013 she was taken to her local hospital in Warrington with a head injury which was found to be non-accidental and probably inflicted by the father. On discharge from hospital the baby was taken into foster care. Proceedings were instituted and after several hearings before HHJ Dodds concluded in December 2013 with an adoption placement.
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4 July 2014 by Guest Contributor
Rutherford and Ors v Secretary of State for Work and Pensions [2014] EWHC 1613 (Admin) – Read judgement here.
At the end of May, the High Court ruled that the reduction in Housing Benefit under Regulation B13 of Housing Benefit (Amendment) Regulations – commonly dubbed “the bedroom tax” – did not unlawfully discriminate against a family with a disabled child requiring an additional bedroom for overnight careers because the shortfall was covered by discretionary housing payments.
The case involved three Claimants: Mr and Mrs Rutherford and their 14-year-old grandson Warren. Warren suffers from a profound disability requiring 24-hour care from at least two people. Mr and Mrs Rutherford need the assistance of two paid careers for two nights a week. The family live in a three-bedroom bungalow rented from a housing association and specifically adapted to meet Warren’s needs. Mr and Mrs Rutherford sleep in one room, Warren in another, and a third room is used as a bedroom for overnight carers and to store medical equipment.
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12 June 2014 by Guest Contributor
Guardian News and Media Ltd -v- AB CD – Read preliminary judgment
The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.
Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.
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11 June 2014 by David Hart KC
Khaira v. Shergill [2014] UKSC 33, 11 June 2014 read judgment
Adam Wagner assisted two of the respondents in this case on behalf of Bindmans, solicitors, but was not involved in the writing of this post.
The Supreme Court has just reversed a decision of the Court of Appeal (see my previous post here) that a dispute about the trust deeds of two Sikh religious charities was non-justiciable and so could not and should not be decided by the Courts. By contrast, the SC said that two initial issues concerning the meaning of trust deeds were justiciable, and, because of this, further issues which did raise religious issues had to be determined by the courts.
The wider interest of the case is its tackling of this tricky concept of non-justiciability.
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