Category: In the news
25 March 2015 by Rosalind English
The Bussey Law Firm PC & Anor v Page [2015] EWHC 563 (QB) – read judgment
The facts of this case are simple. A defamatory comment was posted on the claimant’s Google maps directional page, implying that he was a “loser” as a lawyer and that his firm lost “80%” of cases brought to them. The defendant claimed that someone must have hacked in to his own Google account to put up the post.
There were jurisdictional complications in that the firm is situated in Colarado but these need not concern us here as Sir David Eady, sitting as a High Court judge, allowed the trial to go ahead in England. The real question was why any third party would have gone to the trouble of hacking into the defendant’s Google account in order to post the offending review; if the objective were merely to hide the hacker’s identity from the claimants, there would be the simpler option of setting up an anonymous Google account. This would in itself render the would-be publisher untraceable, and especially if it were done from a public computer.
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23 March 2015 by Guest Contributor
Avid readers of the legal press may have spotted the eye-catching statistic that in 2014 a meagre 1% of claims for judicial review were successful.
The figure is derived from the statement in the MOJ’s overview of the Civil Justice Statistics Quarterly (October – December 2014) published on 5 March 2015, in which the MOJ said:
The proportion of all cases lodged found in favour of the claimant at a final hearing has reduced … to 1% in 2013 and has remained the same in 2014.
The overview provided by the MOJ is unsurprisingly hardly a neutral presentation of the statistics. The statement is clearly intended to tell a story about the futility of the vast majority of judicial review claims, adding fuel to the MOJ-stoked fire that has been raging against judicial review.
In fact the statistic tells the opposite story, as revealed by the underlying tables.
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22 March 2015 by David Hart KC
Delaney v. Secretary of State for Transport, Court of Appeal, 9 March 2015 – read judgment
The Court of Appeal has recently upheld the decision of Jay J here that a drug-dealer was entitled to compensation against the Government for injuries in a car accident, even though at the time he and the negligent driver both had drugs on them.
The Government was involved because the driver’s insurance was invalidated because of his cannabis use, and because the Government had not made provision for these liabilities to be picked up by either by insurers or the Motor Insurers Bureau (MIB), as it should have done under EU Law.
Mr Delaney therefore recovered state liability damages – which lawyers know as Francovich damages – from the Government.
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19 March 2015 by Rosalind English
A healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment
The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.
This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second
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19 March 2015 by Guest Contributor
R(on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16 – read judgment
The Supreme Court was sharply divided yesterday over whether the benefit cap breaches the Human Rights Act. The controversial cap limits the total amount of benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. As a result, lone parents with children in large families are disproportionately affected, both because they are more likely to be hit by the cap and because they are less likely to be able to avoid its effects.
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16 March 2015 by acwessely
Photo credit: Guardian
Alex Wessely brings us the latest edition of the Human Rights Round-up
In the news
Planned increases in court fees have been given the green light after successfully clearing the House of Lords. As the Law Gazette reports here a 5% charge will be added to all civil claims valued above £10,000, with an aim to raise £120m per year for the court service. ObiterJ writes that “for many people in need of the law, access to justice will now be a forlorn hope”. Whereas Lord Faulks, a Minister behind the reforms, argued that litigation is “very much an optional activity”, this was disputed by Lord Pannick – “litigation is often a necessity to keep your business alive or to maintain any quality of life”. Joshua Rozenberg, writing in the Guardian, bemoans the lack of attention paid to these significant increases, which shows that “the public has very little interest in what is being done in its name”.
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16 March 2015 by Rosalind English
Let’s apply some hard history to the 13th century charter governing the obligations flowing between King John and his barons, or at least read the thing (translation here). So says Lord Sumption in a fascinating address to Friends of the British Library on 9 March.
All sides jockey for position at the Magna Carta shrine, but its significance is entirely due to the myth-making tendencies of the seventeenth century politician and judge Edward Coke. Since he plucked the charter quite clean of its historical context, the claims made in its name are extraordinary and downright self-serving:
In his column in the Daily Telegraph, Peter Oborne recently described the European Convention on Human Rights as a “document which entrenches the principles of Magna Carta in international law.” Others have come forward to suggest that the partial abrogation in 2014 of a legal aid system which was first created in 1949 was contrary to Magna Carta. Recently, a Global Law Summit in London, which was essentially an international marketing opportunity for British lawyers, described itself on its website as “grounding the legacy and values of Magna Carta in a firmly 21st Century context.
Sumption is not against liberty of the subject, nor motherhood and apple pie, nor even international marketing opportunities for lawyers, but he does have a problem with “the distortion of history to serve an essentially modern political agenda.”
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13 March 2015 by David Hart KC
Montgomery v. Lanarkshire Health Board [2015] UKSC 11, 11 March 2015 – read judgments here
James Badenoch QC of 1COR was for the mother in this case. He played no part in the writing of this post.
An important new decision from a 7-Justice Supreme Court on informed consent in medical cases.
In the mid-1980s a majority of the House of Lords in Sidaway decided that it was on the whole a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk. Thus the principle that the standard of medical care is to be determined by medical evidence (which all lawyers will know as the Bolam principle) was extended to the quality of information to be provided to a patient about a given treatment.
The Supreme Court, reversing the judgments at first instance and on appeal, has now unequivocally said that Sidaway should not be followed.
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13 March 2015 by Guest Contributor
Singh and Khalid v SSHD [2015] EWCA Civ 74 – read judgment
These two appeals concern the assessment of article 8 ECHR claims in immigration cases. It is an important addition to the current cases on which rules apply to applications for leave to enter or remain made before the new Immigration Rules came into force on 9 July 2012. In Singh and Khalid, the Court of Appeal clarified the answer to this question and resolved the conflicting Court of Appeal authority in Edgehill v SSHD [2014] EWCA Civ 402 and Haleemudeen v SSHD [2014] EWCA Civ 558.
The new Immigration Rules
The role of article 8 in immigration cases has caused controversy over the years.
The government has therefore decided to set out how the balancing exercise should be carried out by introducing HC194. Two main additions were made through the new Rules. The first was that paragraph 276ADE was added to the existing Part 7. This provision increased the long-term residence requirement from 14 to 20 years. The second was that Appendix FM was added to Part 8 of the Rules. It dealt with circumstances in which family members would be granted leave to enter or remain.
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9 March 2015 by Kate Beattie
Patricia Davies (by her mother and litigation friend Zelda Davies) v Chief Constable of Merseyside [2015] EWCA Civ 114 – read judgment
The Court of Appeal has considered the compatibility with Article 8 ECHR of the police’s removal of a 14 year old girl’s clothing after she had been arrested and taken to a police station.
Background
The background facts were that the claimant was arrested outside a kebab shop in Argyle Street, Birkenhead. Her behaviour was uncontrolled and aggressive and she was handcuffed and taken to Wirral police station. The custody officer ordered that her clothing should be removed because she was a suicide risk. She was taken to a room by three female officers who removed her clothing and dressed her in a safety gown. She was then placed in a cell in which she could be observed by means of internal CCTV.
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8 March 2015 by Hannah Noyce
Photo credit: The Guardian
A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.
One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.
The Met ultimately backed down – but what if it hadn’t? What is the legal position?
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6 March 2015 by Dominic Ruck Keene
John Catt. Photo credit: The Guardian
R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9
A majority of the Supreme Court has held that the retention by police of information on the Domestic Extremism Database about a 91 year-old activist’s presence at political protests was (1) in accordance with the law and (2) a proportionate interference with his right to a private life under Article 8(1) of the ECHR.
However, Lord Toulson’s dissent noted that the information was retained for many years after Mr Catt had attended these mainstream political events, and the police had concluded that he was not known to have acted violently. Accordingly, he thought its retention was unnecessary and disproportionate.
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4 March 2015 by Hannah Lynes
After a brief hiatus, the Human Rights Round-up is back. Our new team of expert summarisers – Hannah Lynes, Alex Wessely and Laura Profumo – is installed and ready to administer your regular dose of UK human rights news.
This week, Hannah reports on the Global Law Summit, access to justice, and what’s happening in the courts.
In the News
‘If you wrap yourself in the Magna Carta…you are inevitably going to look ridiculous if you then throw cold water on an important part of its legacy.’ Lord Pannick QC was not alone last week (23-28th February) in suggesting that there was some irony in Lord Chancellor Chris Grayling evoking the spirit of the Magna Carta at his launch of the three-day Global Law Summit.
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27 February 2015 by Guest Contributor
Zenati v Commissioner of Police of the Metropolis and another [2015] EWCA Civ 80 – read judgment
Matthew Donmall appeared for the Crown Prosecution Service in this case. He had nothing to do with the writing of this post.
In a recent judgment, the Court of Appeal held that where a criminal suspect is remanded in custody, Article 5 of the Convention requires the police to notify the court as soon as possible if there is no longer a reasonable basis for suspecting them. It also held that the police and CPS must aid the court in observing its duty to show ‘special diligence’ in managing a suspect’s detention, by investigating the case conscientiously and by promptly bringing relevant material to the court’s attention.
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25 February 2015 by David Hart KC
The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council [2015] SC 7 25 February 2015- read judgment
Late February is not necessarily the best time of year for a bit of UK sea swimming. But the Supreme Court has just come out with interesting judgments about whether there is a right to go to the beach and swim from it. For reasons I shall explain, they were anxious not to decide the point, but there are some strong hints, particularly in the judgment of Lord Carnwath as to what the right answer is, though some hesitation as to how to arrive at that answer.
It arose in a most curious setting – East Sussex’s desire to register West Beach, Newhaven as a village green under the Commons Act 2006. But a beach cannot be a village green, you may say. But it is, said the Court of Appeal (see Rosalind English’s post here), and the Supreme Court did not hear argument on that point.
Now to the background for the present decision.
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The Bussey Law Firm PC & Anor v Page [2015] EWHC 563 (QB) – read judgment
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