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What is the test the Court should apply in deciding whether an application is ‘totally without merit’? The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’. A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.
This power is one that is already exercisable by judges when refusing applications for permission to appeal on the papers under Civil Procedure Rules (CPR) r. 52.3(4A), the effect of which is to prevent the appellant from renewing the application orally. However, it is better known – or, at least, more widely used – in the context of the courts’ jurisdiction to make ‘civil restraint orders’ under CPR 3.11. Indeed, the Administrative Court has had power to certify an application as TWM for the purposes of making a ‘civil restraint order’ since those rules were introduced in 2004 (see R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536). Although no statistics are currently available for this use of the power to certify a claim as TWM, according to Lynne Knapman, Head of the Administrative Court Office, these are now being collated for applications made since the beginning of 2013.
The Supreme Court has produced a rather excellent short YouTube video about what it does. Look out for interviews with Justices, a funky 3D representation of the UK court system, a bit of court action and of course, cheesy muzak.
Regular readers will know I am a big fan of the Supreme Court’s efforts to be accessible to the public, which stand in stark contrast to the almost non-existent efforts of the rest of the UK justice system. You can find an article about the video by the court’s Chief Executive here and one reviewing the court’s innovations here.
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 →
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.
The Ministry of Justice has released its response to the comments generated by the consultation paper on judicial review that was published in December. Unsurprisingly, the Government has signalled that it intends to press ahead with most of the proposals upon which it consulted. In particular, it plans to implement the following proposals:
Time limitsThe time limit for judicial review (which at three months is already very short) will be reduced to six weeks in planning cases and thirty days in procurement cases. The Government recognizes that these timescales are so short that compliance with the Pre-Action Protocol will be impossible, so it will invite the judiciary to disapply the Protocol in such cases. Given that one of the objectives of the Pre-Action Protocol is to encourage pre-litigious resolution of disputes, it is not clear how this will promote the Government’s objective of reducing recourse to litigation.
Oral renewal of applications certified as “totally without merit” Continue reading →
International Stem Cell Corporation v Comptroller General of Patents 17 April 2013 [2013] EWHC 807 (Ch) – read judgment
The EU bans the patenting of human embryos for commercial purposes. This ban is implemented in national law via the 1977 Patents Act. But what precisely is a “human embryo” for the purposes of the Biotech Directive? Or, put another way, must the process involving embryonic stem cells be capable of developing into a human being, before the ban can bite?
Stem cells – not just the embryonic variety – are vital to current medical research. This is because they have the capacity to differentiate into almost any type of adult cell, thus opening the door to a wide variety of new therapies and other medical applications. In theory, stem cells can be grown in the lab and developed into healthy adult cells to correct cardiovascular disorders , diabetes and a range of degenerative brain diseases and spinal cord injuries. One of the first triumphs of stem cell therapy is the ability of retinal pigment epithelium cells, cultured from embryonic stem cells (ESCs), to reverse the effects of age related macular degeneration. Other potential applications include the treatment of burns, strokes, eye disease, spinal cord injuries and certain forms of cancer.
But the concept of ESCs is fraught with emotion and controversy and scientists have worked, with varying degrees of success, at finding stem cells elsewhere, either in adult tissue, or by creating stem cells from non-viable embryos. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Strasbourg popping up in various places in the human rights news this week: a couple of important decisions, as well as some broader reporting on the UK’s human rights performance this year. Meanwhile, the battle between the Home Secretary and the immigration judges continues; and the US Supreme Courts turn away a foreign human rights claim.
Aswat v United Kingdom, 16 April 2013 – read judgment
The Strasbourg Court has ruled that a terrorist suspect detained in the United Kingdom’s Broadmoor hospital should not be extradited to the United States because of the risk that his mental condition would deteriorate there.
The applicant was indicted in the US in respect of a conspiracy to establish a jihad training camp in Oregon. He was arrested in the UK in 2005 and in 2006 the Secretary of State ordered his extradition. He unsuccessfully appealed the High Court and the Court of Appeal on the grounds that his extradition would not be compatible with Article 3 of the Convention because he could be detained in a “supermax” prison. In November 2011 a mental health tribunal determined that he was suffering from paranoid schizophrenia. Continue reading →
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 →
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.
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?
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.
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week, the accession of the EU to the ECtHR moves towards finalisation, the Iron Lady continues to cause debate and discussion even in death, Legal Aid Reforms bring both praise and consternation and as the Supreme Court swears in new judges, people ask, ‘Where are all the women?’
is what the technology giant Myriad calls the US First Amendment and other human rights arguments raised by their opponents in the litigation concerning Myriad’s patents over cancer gene sequences BRCA1 and BRCA2.
We’ve been here before, in this previous post and in this, and next week the US Supreme Court starts hearing arguments in the latest round of this battle. The only reason for mentioning the issue now is to draw attention to a fascinating article by US science historian Daniel Kevles in a recent edition of the New York Review of Books.
The author provides a dispassionate view of patent law, from its roots in the philosophy of the American revolution, which gave birth to the “Progress Clause” in the American Constitution. Clause 8 authorises Congress
to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Continue reading →
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 →
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What is the test the Court should apply in deciding whether an application is ‘totally without merit’? The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’. A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.
The Ministry of Justice has released 
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found 
A & S v. Lancashire County Council [2013] EWHC 851 (Fam) 
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found 
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