Category: Case law
24 July 2015 by Thomas Raine
Beggs v Scottish Ministers [2015] CSOH 98, 21st July 2015 – read judgment
The Court of Session’s first instance chamber – the Outer House – has held that the way in which the Scottish Prison Service (SPS) handled a prisoner’s correspondence breached Article 8 of the European Convention on Human Rights.
The petitioner, William Beggs, was a prisoner at HMP Glenochil until March 2013 and thereafter at HMP Edinburgh. In 2001 he was sentenced to life imprisonment for the 1999 murder of 18 year-old Barry Wallace, whose dismembered body parts Beggs disposed of in Loch Lomond.
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22 July 2015 by David Hart KC
Coventry v. Lawrence [2015] UKSC 50, 22 July 2015, read judgment here
The pre-April 2013 Conditional Fee Agreement system, under which claimants could recover uplifts on their costs and their insurance premiums from defendants, has survived – just. It received a sustained challenge from defendants to the effect that such a system was in breach of their Article 6 rights to a fair trial.
In a seven-justice court there was a strongly-worded dissent of two, and two other justices found the case “awkward.”
The decision arises out of the noisy speedway case about which I posted in March 2014 – here. The speedway business ended up being ordered to pay £640,000 by way of costs after the trial. On an initial hearing (my post here), the Supreme Court was so disturbed by this that they ordered a further hearing to decide whether this was compatible with Article 6 .
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14 July 2015 by David Hart KC
Dunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment
This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.
Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.
You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.
You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.
The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?
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8 July 2015 by Jim Duffy
In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42
Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?
It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.
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2 July 2015 by Fraser Simpson
Photo credit: Guardian
Reid, Re Judicial Review, [2015] CSOH 84 – read judgment.
The Outer House of the Court of Session has refused a prisoner’s claim for damages resulting from an alleged failure to afford him a reasonable opportunity to rehabilitate himself.
by Fraser Simpson
For a refresher on the Scottish Court system, see David Scott’s post here.
This case follows a Supreme Court judgment last year in which it was affirmed that under Article 5 ECHR there exists an implied duty to provide prisoners with a reasonable opportunity to rehabilitate themselves and to show that they are no longer a danger to the public (R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66). According to the Supreme Court, a failure to satisfy this duty does not affect the lawfulness of the detention but it does entitle the prisoner to damages.
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30 June 2015 by Matthew Flinn
Photo credit: Guardian
The Supreme Court of the United States has decided that same-sex couples have a constitutionally protected right to marry.
In the history of American jurisprudence, there are a handful of cases which are so significant that they will be known to all US law students, much of the domestic population at large, and even large segments of the international community. Brown v Board of Education, which ended racial segregation in schools, is one example. Roe v Wade, which upheld the right of women to access abortion serves, is another. To that list may now be added the case of Obergefell v Hodges.
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27 June 2015 by David Hart KC
R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)
The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.
And all this in a case about trying to improve standards for barristers’ advocacy.
Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.
Its EU-ness arises in this way.
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1 June 2015 by Thomas Raine
Main v Scottish Ministers [2015] CSIH 41, 22nd May 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has had to decide whether the scheme of indefinite notification requirements for sexual offenders in Scotland is compatible with Article 8 of the European Convention on Human Rights.
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22 May 2015 by David Hart KC
Gulati v. MGN Ltd [2015] EWHC 1482 (Ch), Mann J – judgment here
For some years in the early and mid 2000s, a routine form of news-gathering in the Mirror Group was phone hacking – listening to voicemails left for celebrities by their friends, and then dishing up revelations in their papers. And this judgment amounts to a comprehensive pay-back time for the years of distress and upset sustained by those celebrities, as the ins and outs of their private lives were played out for the Mirror Group’s profit. The damages awarded well exceeded those previously payable, as justified in the tour de force of a judgment by Mann J.
Warning – the judgment, compelling though it is, runs to 712 paragraphs. It concerns the assessment of damages in eight cases. The Mirror Group belatedly admitted liability and apologised, not before denying any wrongdoing to the Leveson inquiry. Other claims rest in the wings pending this trial. But with awards between £72,500 and £260,250, the bar has been set high by Mann J.
The claimants (with one exception) were the classic subjects of tabloid columns, namely EastEnders and Corrie stars (or those unfortunate to be married to them), the sometime air hostess girlfriend of Rio Ferdinand, Jude Law’s former wife, Sadie Frost, and, inevitably, Gazza. Seven sued because the hacking led to repeated articles about them. The eighth, Alan Yentob, Creative Director of the BBC, was hacked because of the information derived from the famous people who had left voicemails for him.
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22 May 2015 by Jim Duffy
Guardian: James Rhodes and friends including Benedict Cumberbatch outside Court
James Rhodes v OPO (by his Litigation Friend BHM) and another, [2015] UKSC 32
The Supreme Court has handed down its judgment in an appeal by the celebrated concert pianist, James Rhodes. You can read the judgment here and watch Lord Toulson’s summary here.
The case considered whether Mr Rhodes could be prevented from publishing his memoir on the basis that to do so would constitute the tort of intentionally causing harm. Those acting on behalf of Mr Rhodes’ son were particularly concerned about the effect upon him of learning of details of his father’s sexual abuse as a child.
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21 May 2015 by Alasdair Henderson
Gareth Lee v. Ashers Baking Co Ltd, Colin McArthur and Karen McArthur [2015] NICty 2 – read judgment here.
In a claim popularly dubbed the ‘gay cake’ case, which has attracted international attention, District Judge Brownlie of the Northern Ireland County Court held yesterday that it was unlawful direct discrimination on grounds of sexual orientation for a bakery owned by two Christians to refuse to bake a cake which had printed on it a picture of ‘Bert and Ernie’ and the caption ‘Support Gay Marriage’ .
The parties approached the claim from very different standpoints. The Plaintiff, Mr Lee, argued that Mr and Mrs McArthur refused to bake the cake because he was gay. The Defendants argued that they did not know what Mr Lee’s sexual orientation was and it would have made no difference if they had. They would have happily served him a cake of any kind. Rather, they objected to the message on the cake because they felt they would be promoting or supporting a cause which they disagreed with, going against their consciences. They would have refused to bake the same cake for a customer of any sexual orientation.
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17 May 2015 by acwessely
In the news
“We can be sure of one thing. A battle is coming.” The future of the Human Rights Act still dominates the news, and this quote comes from UKHRB’s Adam Wagner, who suggests five tactics to ensure that human rights are not eroded. Perhaps the most in-depth analysis to date comes from Jack of Kent, who isolates the “seven hurdles” facing the government, including Scotland, Tory backbench rebels, the House of Lords and the wording of the “British Bill of Rights” itself. He summarises:
So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable. But it seems unlikely.
Jack of Kent´s conclusion is echoed by Matthew Scott in the Telegraph (“Gove…faces almost insurmountable odds”), Mark Elliott in Public Law for Everyone (“the HRA…is far more deeply politically entrenched that the UK Government has so far appreciated”) and the Economist (“getting rid of the HRA will be tough – and almost pointless”).
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9 May 2015 by David Hart KC
Bank Mellat v HM Treasury [2015] EWHC 1258 (Comm), Flaux J, 6 May 2015, read judgment
Two recent judgments underscoring the potential high cost of the UK getting it wrong in its dealing with businesses and hence being liable to pay damages under the Human Rights Act for breach of its A1P1 obligations. Regular readers will know that A1P1 is the ECHR right to peaceful enjoyment of property.
The first case was the photovoltaics case of Breyer, all about reducing renewables subsidies unfairly: see my post of last week here. The second, this case, involves a much more direct form of impact, namely the Treasury’s direction under the Counter-Terrorism Act 2008 that no-one else should have any commercial dealings with Bank Mellat, because, the Treasury said, the Bank had connections with Iran’s nuclear and ballistic missile programme.
Bank Mellat’s challenge got to the Supreme Court: see judgment and my post. The Court (a damn’d close run thing – 5:4) concluded that the direction was arbitrary and irrational and procedurally unfair. The nub of the complaint is that there were other Iranian banks against whom this very draconian measure was not taken, and that there was nothing specific about the Bank which made it more implicated than the rest of the banking system.
The Supreme Court remitted the case for trial as to HRA damages.
The current judgment of Flaux J is the first stage in that trial process. As we will see, Bank Mellat are distinct winners at this stage.
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4 May 2015 by David Hart KC
Department of Energy and Climate Change v. Breyer Group plc and others [2015] EWCA Civ 408, 28 April 2015 read judgment
In 2011, DECC decided to change the rules about subsidies for photovoltaic schemes, and caused substantial losses to those who had contracted or were about to contract on the basis of the more generous old subsidies.
This is prime territory for a damages claim under A1P1 ECHR. The Court of Appeal has recently dismissed an appeal by DECC against a decision of Coulson J (see my post here) supportive of such claims. The decision was on preliminary issues involving assumed facts, but important legal arguments advanced by DECC were rejected by the CA.
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30 April 2015 by David Hart KC
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Supreme Court, 29 April 2015, judgment here
Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide to refer various issues to the CJEU in Luxembourg. In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.
The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts. Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings. The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.
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