Category: Case law
25 April 2013 by Rosalind English
Lane v Kensington & Chelsea Royal London Borough Council (19 April 2013) – extempore judgement by Sir Raymond Jack QBD
In Italo Calvino’s charming short story “The Baron in the Trees” the twelve year old son of an aristocratic family escapes the stultifications of home decorum by climbing up a tree, never to come down again. He literally makes his home in the treetops of his vast family estate.
So perhaps we shouldn’t quarrel with the inclusion of a tree as part of the concept of home life for the purposes of Article 8. The further twist is that the felling of this particular tree took place on a property where the appellant lived without a tenancy. Nevertheless, this event still amounted to a potential interference with his right to a home under Article 8.
Continue reading →
Like this:
Like Loading...
24 April 2013 by David Hart KC
Salvesen v. Riddell [2013] UKSC 22, 24 April 2013, read judgment
When can an agricultural landlord turf out his tenant farmer? The answer to this question has ebbed and flowed since the Second World War, but one element of the latest attempt by the Scottish Parliament to redress the balance in favour of tenants has just been declared incompatible with Article 1 of the 1st Protocol (A1P1) as offending landlords’ rights to property. The Supreme Court has so ruled, upholding the Second Division of the Court of Session’s ruling in March 2012.
The reasoning is not just of interest to agricultural lawyers either side of the border. But a brief summary of the laws is necessary in order to identify the invidiousness of the new law as identified by the Court – and hence its applicability to other circumstances.
As will be seen from my postscript, the decision of the court below to the same effect appears to have had tragic consequences.
Continue reading →
Like this:
Like Loading...
24 April 2013 by Rosalind English
HL (A Minor) v Facebook Incorporated, The Northern Health and Social Care Trust, The Department of Justice for Northern Ireland and others [2013] NIQB 25 (1 March 2013) – read judgment
In this somewhat chaotic action, the Plaintiff sued ten defendants, in anonymised form by her father and next friend.
The Writ stated that the Plaintiff, aged 12, had been engaged in posting and uploading sexually suggestive and inappropriate photographic images of herself onto Facebook, and that she had been doing so vis-à-vis several different accounts with differing profile names. She had been involved with the social services from the age of 11. From July 2012 to January 2013 she was the subject of a Secure Accommodation Order. She currently resides in a specialised unit, is a grade below secure accommodation.
This was clearly a bid by the father to bring his wayward daughter under control by restricting her access to the internet.
Continue reading →
Like this:
Like Loading...
23 April 2013 by Rosalind English
Animal Defenders International v United Kingdom, April 22 2013 – read judgment
In what was a profoundly sad day for democracy, on 22 April 2013 the European Court of Human Rights found in favour of the UK government in a landmark test case concerning a TV advertisement produced by ADI in 2005, and subsequently banned under the Communications Act 2003.
This announcement by Animal Defenders International (ADI) describes the fate of a film from which the picture above is taken. The verdict was carried through by a majority of one – eight out of seventeen judges dissented. And the reference to “democracy” in ADI’s response to the judgment is not overblown. The general trend of the majority appears to suggest that it is legitimate, in a democracy, for a government to impose a blanket restriction on the exercise of freedom in the name of broadcasting freedom. Such an aim is not one of those listed in Article 10(2). As some of the dissenting judges pointed out,
The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all.
….A robust democracy is not helped by well-intentioned paternalism.
Continue reading →
Like this:
Like Loading...
21 April 2013 by Rosalind English
ZAM v CFW & Anor [2013] EWHC 662 (QB) – read judgment
The permanent damage that internet publications can inflict is very much the focus of Tugendhat J’s assessment of damages in this case, encapsulated in the memorable description he quoted in an earlier judgment:
what is to be found on the internet may become like a tattoo.
Since the advent of internet search engines, information which in the past would have been forgotten (even if it had been received front page coverage) will today remain easily accessible indefinitely. So a libel claimant who has a judgment in his favour nevertheless risks having his name associated with the false allegations for an indefinite period.
This is just what had happened in the present case. The second defendant’s liability for libel had already been established. This hearing was to assess the appropriate level of damages for allegations he had published on the internet, in breach of restraining orders against him, suggesting the claimant was guilty of misappropriation of family funds and paedophilia.
Continue reading →
Like this:
Like Loading...
19 April 2013 by Guest Contributor
A & S v. Lancashire County Council [2013] EWHC 851 (Fam) read judgment
This was a costs application arising from an extremely important decision by Peter Jackson J in June 2012 (see Alasdair Henderson’s post here and read judgment)
In that original judgment, Lancashire County Council were found to be in breach of Articles 8 (private life), 6 (fair trial) and Article 3 (inhuman treatment) of ECHR. Two brothers had come into local authority care as infants and were freed for adoption.
Continue reading →
Like this:
Like Loading...
18 April 2013 by Wessen Jazrawi
US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al – Read Judgment
In a long-awaited judgment, the United States Supreme Court has decided unanimously that there was no jurisdiction for a US federal court to hear a claim by a group of Nigerians alleging that the respondents assisted the Nigerian government to kill, rape, beat and arrest individuals who protested against Shell’s environmental practices.
The judgment has already attracted a lot of commentary, from those claiming it is undermines US leadership on human rights to those who argue it is sensible or a mixed bag. The claimants, who resided in the United States, filed suit against the respondents (Dutch, British and Nigerian corporations) in federal court under the Alien Tort Statute (the “ATS”).
Continue reading →
Like this:
Like Loading...
18 April 2013 by Rosalind English
Patel, R(on the application of) v The General Medical Council [2013] EWCA Civ 327 – read judgment
Kate Beattie of 1 Crown Office Row was led by Richard Drabble QC for the appellant in this case. She has nothing to do with the writing of this post.
The registration criteria for doctors trained abroad have been changed to respond to abuse by medical schools claiming false affiliations with the institutions listed in the WHO Directory. Although the 2006 rules effecting this change were lawful, the appellant had a legitimate expectation that he could rely on individual and specific assurances that he would be allowed to register on completion of his training.
The appellant, a qualified pharmacist, wished to qualify as a doctor. He sought assurances from the GMC that his part time course with a medical school in St Kitts. affiliated with the London College of Medicine, would lead to an acceptable qualification. The GMC’s replies indicated that it would be. He performed his pre-clinical studies by distance learning at IUHS in St. Kitts and then completed his supervised clinical rotations at United Kingdom hospitals. This course clearly represented a huge investment of time and money by the appellant. However, registration of his Primary Medical Qualification (PMQ) was subsequently refused because the registration criteria had been changed.
Continue reading →
Like this:
Like Loading...
18 April 2013 by David Hart KC
Reeves v. Northrop, CA, 17 April 2013, – read judgment
Randy Northrop is a Californian and a wanderer in spirit. He lives with his family aboard MY Cannis – see the pic. He got fed up of “living in a grotty council house in a rough area” of Bristol, so bought and renovated this former Thames tug. And nice inside it sounds too – two open fireplaces, several flat screen TVs, a music room and grand piano.
He spent 8 years moored in Bristol, but the “authorities there aren’t too keen on “live-aboards.”” So he moved on and in 2008 ended up in North Devon moored off Chivenor.
How then did he have the misfortune to stray into one of the backwaters of the law – the law of council tax? Because, after featuring in the local paper, he made a generous offer “as a gesture of good citizenship” to pay some “voluntary” council tax. And instead of the authorities saying “how kind, than you very much” he got a “statement” saying that he was Band A – “fait accompli” as he rightly observed. But a po-faced response which did not indeed endear itself to Randy. Hence this challenge by him to the authorities’ decision.
Sounds a bit dry? Not at all. In the witty and elegant prose of Sir Alan Ward, even rating law is made interesting – and the retired Lord Justice pokes fun at the pompous verbiage you have to wade through to answer the question – do you have to pay council tax on a moored boat?
Continue reading →
Like this:
Like Loading...
16 April 2013 by David Hart KC
Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, Outer House, Court of Session, Lord Malcolm, 9 April 2013 read judgment
One to read if you have any interest in summary justice in civil litigation – not simply for those who can tell their rebar from their roof tile.
The first instance Scottish judge refused to order enforcement of a £3m adjudication – a form of interim justice -in complex professional negligence proceedings, because to do so would have involved a violation of A1P1 – the right to property. But he ruled against a similar submission based on Article 6 – the right to a fair trial.
Continue reading →
Like this:
Like Loading...
16 April 2013 by Guest Contributor
Mr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment
In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.
The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.
Continue reading →
Like this:
Like Loading...
14 April 2013 by David Hart KC
Korobov and others v. Estonia, 28 March 2013, ECtHR read judgment
At one level, this is a story of Estonian police over-reaction to major disturbances on the streets of Tallinn, which will be found reproduced in various incidents throughout ECHR countries at various times of civil strife. But a good deal of history and politics lies behind it, and Russia’s intervention in Strasbourg, in support of the applicants’ claims under Article 3 (excessive force) and 5(1) (unlawful detention) against Estonia is of some interest.
The Bronze Soldier, originally named “Monument to the Liberators of Tallinn” was unveiled there on 22 September 1947, on the third anniversary of that “liberation” in 1944. Not all – including ethnic Estonians – saw it as a liberation. The Germans had retreated before the Red Army arrived, and on 18 September 1944 the Provisional Estonian government had declared independence – short-lived as Estonia was rapidly incorporated into the Eastern bloc courtesy of the Red Army. So “takeover” might be a term closer to Estonians’ hearts.
Continue reading →
Like this:
Like Loading...
11 April 2013 by David Hart KC
R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,
and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45
Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.
The first development is a decision by the CJEU on the meaning of those words.
The second is a new set of rules providing for protective costs orders in environmental judicial review claims.
Continue reading →
Like this:
Like Loading...
11 April 2013 by David Hart KC
Sweetman v. An Bord Pleanala, CJEU, 11 April 2013, read judgment
I posted back in November 2012 on Advocate-General Sharpston’s opinion in this important case concerning the Habitats Directive.
John Jolliffe from 1COR will be covering the judgment of the CJEU soon, but in the interim it may be worth setting out key passages from the judgment. As will be seen from them, the Court broadly followed the approach taken by the AG – though any first-time student of this area of law would do better to start with the AG’s opinion, rather than with the rather bland text of the judgment.
Continue reading →
Like this:
Like Loading...
11 April 2013 by David Hart KC
Stevens v. Secretary of State for Communities & Local Government, Hickinbottom J, 10 April 2013 read judgment
As the judge explicitly recognised, this case raised the clash of two principles – how to resolve the policy-driven field of planning with the rights of family under Article 8 ECHR and of the child under Article 3 of the UN Convention on the Rights of the Child (UNCRC).
The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The Council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.
Continue reading →
Like this:
Like Loading...
Lane v Kensington & Chelsea Royal London Borough Council (19 April 2013) – extempore judgement by Sir Raymond Jack QBD 
Recent comments