Category: Case law
25 February 2014 by David Hart KC
Brown v. HM Coroner for Norfolk [2014] EWHC 187 (Admin) – read judgment
This is the sad tale of a young woman aged 31 dying in mysterious circumstances where the inquest went off entirely on the wrong footing. Joanne Foreman was not a diabetic but lived with a young boy who was. It was suspected that on the night before she died she had drunk heavily and then injected herself with insulin. The inquest proceeded on this basis. Nobody told the expert that the paramedics had taken a blood glucose from Joanne, which was entirely normal. Once this was known, it was obvious that the court would quash the findings at inquest and order a new inquest.
But the case contains powerful guidance from the Chief Coroner (sitting as a judge on this decision) about how to conduct the pre-inquest review.
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23 February 2014 by David Hart KC
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment
Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.
L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.
So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.
But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.
Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.
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18 February 2014 by David Hart KC
Commission v. UK, judgment of CJEU, 13 February 2014 – read judgment – UPDATED
Litigation costs are troublesome, but they are particularly difficult in environmental cases where the claimant is not necessarily pursuing his private interests. This case is the result of a long-running and successful campaign by NGOs to persuade the EU Commission to investigate UK environmental legal costs. The main finding may not bother the UK too much, because wisely it saw this one coming and changed costs rules in environmental public law cases. A subsidiary ruling about cross-undertakings has also been more recently included in a rule change.
All of this comes from Article 9 of the Aarhus Convention (to which the EU has subscribed) which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”.
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7 February 2014 by
Richardson v Director of Public Prosecutions [2014] UKSC 8 – read judgment / press summary
The tactics of protesters engaging in demonstrations, or acts of civil disobedience, frequently raise interesting questions of law. A demonstration by two activists opposed to the Israeli occupation of the Palestinian Territories, who entered a shop in Covent Garden which sold produce from the Dead Sea, produced on an Israeli settlement, recently resulted in the Supreme Court addressing two such questions.
First, in what circumstances can someone who trespasses on premises and disrupts the activities of the occupiers avoid prosecution by arguing that those activities were in some way unlawful?; and second (obliquely) is the construction of Israeli settlements on the West Bank an offence under English law? The short answers were (1) only when the unlawfulness is integral to the occupier’s activity; and (2) probably not.
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1 February 2014 by Rosalind English
Government of the Republic of South Africa v Dewani [2014] EWHC 153 (Admin) 31 January 2014 – read judgment
Shrien Dewani, the British man facing charges of murdering his wife on honeymoon in South Africa, has lost his appeal to block extradition there (so far three men have been convicted in South Africa over Mrs Dewani’s death). The Court ruled that it would not be “unjust and oppressive” to extradite him, on condition that the South African government agreed to return him to the UK after one year if his depressive illness and mental health problems still prevented a trial from taking place.
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23 January 2014 by Dominic Ruck Keene
Vidal Hall and Ors v Google Inc [2014] EWHC 13 (QB) – read judgment
A group of UK Google users called ‘Safari Users Against Google’s Secret Tracking’ have claimed that the tracking and collation of information about of their internet usage by Google amounts to misuse of personal information, and a breach of the Data Protection Act 1998. The Judge confirmed that misuse of personal information was a distinct tort. He also held that the English courts had jurisdiction to try the claims.
Mr Justice Tugendhat’s decision was on the basis that (1) there was a distinct tort of the misuse of private information (2) there was a serious issue to be tried on the merits in respect of the claims for misuse and for breach of the DPA; (3) the claims were made in tort and damage had been sustained in the jurisdiction and (4) England was clearly therefore the most appropriate forum for the trial.
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22 January 2014 by David Hart KC
R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, [2014] UKSC 3 – read judgments
So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.
The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.
Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates.
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22 January 2014 by Rosalind English
Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement
The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.
This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year.
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19 January 2014 by Guest Contributor
West London Mental Health NHS Trust (Respondent) v Chhabra (Appellant) [2013] UKSC 80 – read judgment
It is not unknown for lawyers or doctors to speak on a mobile phone about confidential details of a case while travelling by train. Some of you may even have left case papers out on your seat or table while you hunt down a bacon baguette from the Travelling Chef (formerly known as “Toastie Geoff” prior to rebranding). If so, read on, for this is a cautionary tale…
This appeal by Dr Chhabra was concerned with the roles of the case investigator and the case manager when handling concerns about a doctor’s performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS), which the Trust had implemented through its own policies.
The factual summary below is derived from the Supreme Court Press Summary
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18 January 2014 by Rosalind English
Jones and Others v. the United Kingdom (application nos. 34356/06 and 40528/06) – read judgement
The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention. The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law” and that there had been no violation of Article 6 (right of access to court).
The claimants argued that there there was emerging support for a special exception to this immunity in cases concerning civil claims for torture lodged against foreign State officials. But the Court took the view that the bulk of the authority was to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity.
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14 January 2014 by Rosalind English
Belhaj and another v Straw and Others [2013] EWHC 4111 (QB) 20 December 2013 – read judgment
Peter Skelton of 1 Crown Office Row acted for the defendants in this case. He has nothing to do with the writing of this post.
The High Court has struck out claims against British establishment defendants for “unlawful rendition”. The doctrine of immunity attaching to an act of state is total bar to that such claims and is not limited by the gravity of the alleged violation of rights.
Factual background
The first claimant, an opponent of the Gaddafi regime, and his wife, the second claimant, had been apprehended in Bangkok in 2004 whilst trying to travel from Beijing to the UK to claim asylum. They were held in a detention centre in Kuala Lumpur for two weeks and whilst they were there the UK authorities, along with the US, the Malaysians and the Chinese, worked together to secure their extradition to Libya (this was a time when friendly relations were maintained between the UK and the Libyan government). After another journey to Bangkok, where they were detained in a US “black site”, they were flown to Tripoli and transported to Tajoura prison, a detention facility operated by the Libyan intelligence services. The second claimant was released later in 2004, but the first claimant was transferred to another prison and held until 2010.
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8 January 2014 by Guest Contributor
Marines A & Ors v Guardian News and Media & Other Media [2013] EWCA Crim 2367 – read judgment
On 15 September 2011 a patrol of Royal Marine Commandos were involved in an incident, which resulted in one of them, referred to as “Soldier A”, shooting dead an armed but seriously wounded Taliban fighter. Evidence of the shooting emerged later and five members of the patrol were eventually charged with murder. The charges against two of them were later dropped but the three remaining marines were tried for murder before the Court Martial. On 8 November 2013, Soldier A was found guilty of murder.
Quite apart from this extraordinary facts, the trial was unusual for another reason: publication of the identity of each of the defendants was prohibited at the commencement of the proceedings by an assistant Judge Advocate and later the Judge Advocate General (each of the judge’s in the court martial who considered the issue are referred to throughout as “judge”). The Court Martial Appeal Court (essentially the Court of Appeal Criminal Division sitting under a different name) was later invited to review the orders in respect of reporting restrictions. This was linked to the release of video footage and photographs relied on by the prosecution during the case.
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3 January 2014 by
LH Ltd v The Legal Ombudsman [2013] EWHC 4137 (QB) – Read judgment
Adam Wagner represented the Legal Ombudsman in this case. He is not the writer of this post
Does the Legal Ombudsman have teeth? That was, in effect, the question before the High Court in this judicial review brought by a former solicitor against a decision by the Ombudsman to reduce his fees following a complaint by one of his clients. The Court’s answer was a very clear yes. Where the Ombudsman has made her decision properly, taking relevant factors into account, it is likely to withstand judicial review challenge.
In this case, the solicitor in question had been convicted of a count of fraud following an investigation into his involvement in money laundering and had been imprisoned and struck off the roll of solicitors. His prison sentence served, he was now pursuing his former clients through the courts for unpaid invoices. He appeared on behalf of his firm with the court’s permission, arguing that the Ombudsman’s decision to reduce his fees from £5,000 including VAT to £1,500 plus VAT (in a case which had nothing to do with the money laundering allegations) was in excess of jurisdiction and was irrational.
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30 December 2013 by Dominic Ruck Keene
Griffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2013] EHWC 4077 (Admin) – read judgment.
Oliver Sanders of 1 Crown Office Row represented the Defendant in this case and Adam Wagner also acted for the Defendant prior to the substantive hearing. They are not the writers of this post.
Two female prisoners nearing the date on which they would be considered for release on licence, brought conjoined challenges against the Secretary of State for Justice in respect of the provision of ‘approved premises.’ The Claimants challenged the alleged continuing failure to make adequate provision for approved premises to accommodate women prisoners like them released on licence.
Mr Justice Cranston rejected the argument that the limited number of approved premises for women treated female prisoners released on licence into such premises less favourably than comparable men. He held that despite the likelihood of a greater geographic separation from their homes and families, the Secretary of State had not discriminated directly or indirectly against female prisoners. However, the Secretary of State had failed to fulfil his duty under the Equality Act 2010 to consider the impact of the limited provision of approved premises of women.
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15 December 2013 by David Hart KC
On 9 December 2013, Professor Paterson launched his new book, Final Judgment (Hart Publishing, absolutely no relation), via the Second annual Bailii lecture, Decision-making in the UK’s top court – read lecture here, order book here (£21.25, Amazon) or direct from the publishers at £20 here (reference ‘PATERSON’ to get the further discount)
The lecture summarises a wise, perceptive, and at times funny work of scholarship, and this post is an unashamed plea that you read the book as well as the lecture.
The book is based upon over 100 interviews with Law Lords, Justices and counsel. Paterson is particularly well-placed, having carried out a review in the 1970s with 15 then current or former Law Lords and 46 counsel. He has also looked at the judicial notebooks of two of the outstanding leaders of the judicial House of Lords, namely Lord Reid in the 1960s and 1970s, and Lord Bingham in the 2000s. These notebooks contain not only records of counsel’s arguments, but also details of what the Law Lords or Justices thought at the end of the “first conference” held immediately after the oral hearing. And the revelation was that in many important cases the judges’ view shifted between that conference and the ultimate decision, often with a critical impact on the outcome. One of the particular interests of the book is to follow through the big cases of the last years, and see how the judges ended up where they did.
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Brown v. HM Coroner for Norfolk [2014] EWHC 187 (Admin) – read judgment
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