Category: In the news
19 February 2018 by Rosalind English
CN and Anor v Pool Borough Council [2017] EWCA Civ 2185, 21 December 2017 – read judgment
Just over six weeks before the Supreme Court ruled that the police owed the public a duty of care in Robinson (see our post here) the Court of Appeal had unanimously rejected the existence of such a duty in the context of social services and vulnerable children. Giving the leading judgment, Irwin LJ said that there were two strong reasons for rejecting the claimants’ case.
[F]irst is the concern, articulated in X v Bedfordshire in relation to social services and in Hill v West Yorkshire in relation to the police, that liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making. The second is the principle that, in general, there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. Both of these considerations, in my view, bite on the facts in this case.
In his concurring judgement, Davis LJ observed that “nothing in this case as pleaded requires or justifies it going to a full trial.”
The claimants have sought permission to appeal to the Supreme Court.
Continue reading →
Like this:
Like Loading...
18 February 2018 by Guest Contributor
Eleanor Leydon brings us the latest developments in rights law.
In The News:
A Senior District Judge has ruled that upholding the warrant for Julian Assange’s arrest is both in the public interest and proportionate, albeit that Assange has already restricted his own freedom for several years. In determining the proportionality of the proceedings the judge had regard to the seriousness of the failure to surrender, the level of culpability at this stage of the proceedings, and the harm caused, including impact on the community.
Continue reading →
Like this:
Like Loading...
14 February 2018 by Rosalind English
The second in Professor Catherine Barnard’s series on the legal milestones of the Brexit process is now up on iTunes and Audioboom. And today we have posted Isabel McArdle talking to Rosalind English about the Supreme Court ruling on police liability in Robinson v West Yorkshire Police.
Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
Like this:
Like Loading...
14 February 2018 by Rosalind English
ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal [2017] SGCA 20 – read judgment
It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology. This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest in the area of medical science,
where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.
Background facts
The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed to discard the disposable pipettes that had been used after each step of the IVF process. This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s.
Continue reading →
Like this:
Like Loading...
13 February 2018 by Guest Contributor
On 6th February 2018, the Court of Appeal in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64 gave authoritative guidance on how Paposhvili v Belgium (Application no. 41738/10), which was decided last year by the Grand Chamber of the European Court of Human Rights, should be applied by English courts.
The issue in AM (Zimbabwe) concerned the applicable test for when removal of seriously ill people to their country of origin would raise an issue under Article 3 of the European Convention on Human Rights (prohibition on inhuman or degrading treatment). Sales LJ, giving the judgment of the Court of Appeal, decided that removal would only violate Article 3 if intense suffering or death would be imminent in the receiving state as a result of the non-availability of treatment which would have been available in the UK (AM para 38).
This ‘extended look’ analysis piece will call into question whether the Court of Appeal’s interpretation of Paposhvili into English law is correct.
Continue reading →
Like this:
Like Loading...
13 February 2018 by Guest Contributor
R (on the application of B) v Secretary of State for the Home Department [2018] UKSC 5
On 8th February 2018, the Supreme Court held that the power to grant bail and impose bail conditions in respect of a person pending deportation ceases to be lawful if there is no legal basis for detaining that person. The power to impose bail conditions is inextricably linked to the power of detention. Once the Home Secretary ceases to have the power to detain a person under immigration law, she can’t then impose conditions on that person’s freedom through bail conditions.
Continue reading →
Like this:
Like Loading...
12 February 2018 by Isabel McArdle
Robinson (Appellant) v Chief Constable of the West Yorkshire Police (Respondent) [2018] UKSC 4
Update – Isabel McArdle talks to Rosalind English about this case in the latest episode from Law Pod UK, available for free download from iTunes and Audioboom (episode 23).
The Supreme Court has made a significant decision on the question of the scope of the common law duty of care owed by police when their activities lead to injuries being sustained by members of the public. It has long been the case that a claim cannot be brought in negligence against the police, where the danger is created by someone else, except in certain unusual circumstances such as where there has been an assumption of responsibility.
This case, however, was focussed on the question of injuries resulting from activities of the police, where the danger was created by their own conduct. The answer is that the police did owe a duty of care to avoid causing an injury to a member of the public in those circumstances.
Continue reading →
Like this:
Like Loading...
11 February 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law.
Credit: Wiki Commons
In the News:
Robinson v Chief Constable of West Yorkshire
Covered by the Blog here
There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).
The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire [1989] gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.
Mrs Robinson appealed successfully to the Supreme Court.
It held:
Continue reading →
Like this:
Like Loading...
9 February 2018 by Guest Contributor
On 5th February 2018 the Divisional Court gave judgment in Love v USA [2018] EWHC 172 (Admin), holding that the forum bar operated against the extradition of Lauri Love to the United States to face charges of making a series of cyber-attacks on the computer networks of private companies and US Government agencies.
This is the first reported case in which the ‘forum bar’ has been applied to block an extradition.
Continue reading →
Like this:
Like Loading...
7 February 2018 by Guest Contributor
When Britain joined the European Economic Community in 1973 along with Ireland and Denmark, it marked the first enlargement of what we today call the European Union. Since 1973, the club of the nine members has become a union of 28 member states. Most importantly, the law of the EU has developed significantly in terms of validity, scope and substance. What we were studied in the law school with EU law was in essence the institutions, the processes and the tools that are available for the European integration. And in fact EU law has achieved a remarkable degree of integration in some areas such as the Eurozone and the internal market. However, with Brexit, a new chapter is in the writing, this time on the withdrawal from the EU.
A constitutional pathology
The withdrawal of the United Kingdom from the European Union after 44 years poses unprecedented legal challenges but provides useful lessons for the withdrawal process. Until today, this issue was a footnote in the textbooks, with the case of Greenland (which left in 1985) being the only precedent. Greenland joined the European Economic Community in 1973 with Denmark, then gained its autonomy (home rule) from Denmark in 1979 and in a referendum that took place in 1982, 53% percent of the population voted in favour of leaving the European Community. But it is beyond doubt that the exit of Greenland was much less complex, with the main topic for negotiation being the fishing industry.
Continue reading →
Like this:
Like Loading...
6 February 2018 by Rosalind English
In order to set a claim under way in the civil courts, it is necessary to serve the claim form on the party named as defendant. The service rules were good fodder for the likes of Dickens or Trollope as they set their tipstaffs in pursuit of the hapless seeking to escape the Marshalsea or similar; things became rather more mundane when society became too populous for personal service.
Continue reading →
Like this:
Like Loading...
5 February 2018 by Jonathan Metzer
We are delighted to announce the return of the weekly news Round-Up!
Each Monday, Sarah-Jane Ewart, Conor Monighan and Eleanor Leydon will be giving you a bite-sized round-up of legal developments over the last week. These will include summaries of the latest decisions in the courts and discussion of wider issues. We hope these updates will assist in keeping on top of the fast-moving currents in the law in 2018. Don’t go away — these will start next week!
Like this:
Like Loading...
3 February 2018 by Rosalind English
Southern Gas Networks Plc v Thames Water Utilities Ltd [2018] EWCA Civ 33, 25 January 2018 – read judgment
When the supply of gas to your house fails, you are entitled to compensation from the gas undertaker for the inconvenience. If that failure has been caused by another utility’s burst water main, the gas undertaker may seek to recoup its expenses for repair to its own infrastructure and the compensation it has had to pay out to consumers. A simple enough picture.
But behind this straightforward seeming network of liabilities is a labyrinth of common law and statutory relationships whose exploration is not for the faint hearted. As society’s dependence on the provision of energy, water and sewage services grew, during the Industrial Revolution and beyond, parliament had to think of ways to level the playing field between these increasingly centralised powers. This is not a trend that will go away, as the gas, electricity and fibre optic cables become ever more essential to the way we live our lives.
Continue reading →
Like this:
Like Loading...
31 January 2018 by Rosalind English
Kings College Hospital NHS Foundation Trust v Thomas and others [2018] EWHC 127 (Fam) – read judgment
Updated: The Court of Appeal has now ruled that doctors at King’s College hospital, London, could remove Isaiah from the ventilator that has kept him alive since he was deprived of oxygen at birth and sustained catastrophic brain injury. The judges also refused the parents permission to appeal against this ruling. McFarlane LJ said
This case is not about the parents or their hopes. It is and must firmly be about Isaiah and his best interests.
Parental love is to be cherished by society, particularly when a child is sick. But the “flattering voice of hope” is not always in best interests of the object of that love. So concluded MacDonald J in a recent ruling which has attracted considerable media attention. The judge concluded that it was not in the 11- month old boy’s best interests for life-sustaining treatment to be continued. He was satisfied on the evidence of the court, he said, that the boy, Isaiah, had
no prospect of recovery or improvement given the severe nature of the cerebral atrophy in his brain
and that he would remain “ventilator dependent and without meaningful awareness of his surroundings”
Perhaps with the Charlie Gard publicity in mind, MacDonald J was careful to emphasise the weight of the medical evidence as against the parents’ assessment of the boy’s condition. The publicity sparked by this case has led to visits to the child by other medical professionals. There are some forceful concluding remarks in this judgement about the inappropriate nature of these possible “clandestine examinations”. These are now a matter for the police.
The judge also rejected the argument that the court should hear evidence from “foreign” experts on the approach from which other cultures might approach this question in terms of its ethics and outcome. There was a “world of difference” between medical expertise from abroad and a foreign “expert” who simply takes the view that the medical or ethical approach to these issues in this jurisdiction differs from that in their own practice.
It would be extremely unfortunate if the standard response to applications of this nature was to become one of scouring the world for medical experts who simply take the view that the medical, moral or ethical approach to these issues in their jurisdiction, or in their own practice is preferable to the medical, moral or ethical approach in this jurisdiction.
Continue reading →
Like this:
Like Loading...
30 January 2018 by Dominic Ruck Keene
In Noel Douglas Conway v The Secretary of State for Justice [2018] EWCA Civ 16, the Court of Appeal gave an unusually detailed judgment granting permission to appeal against the decision of the Divisional Court in Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640, refusing permission for the applicant to judicially review the criminalisation of physician-assisted suicide under the Suicide Act 1961.
The Divisional Court had held that that Parliament had recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR.
Continue reading →
Like this:
Like Loading...
Recent comments