Category: CONVENTION RIGHTS
5 November 2014 by David Hart KC
Bank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 – read judgment UPDATED POST
Fireworks here from Collins J in making sure that Bank Mellat got some disclosure of information in its fight to discharge a financial restriction order against it.
Bank Mellat is an Iranian bank, initially singled out by an 2009 order which prohibited anybody from dealing with it. The order was part of sanctions against Iran in respect of its nuclear and ballistic missiles programme. However, it bit the dust, thanks to the Supreme Court: see judgment. I did a post on that decision, and followed it up with one (here) on the (dis)proportionality arguments which led to the order’s downfall.
However the Bank was subject to two further orders, made in 2011 and 2012. They led to the freezing of €183m held by it in London. The 2012 order has since been revoked, but the 2011 one remains. This is the subject of the Bank’s application to set it aside. On any view, as Collins J recognised, it had caused very serious damage to the Bank’s business.
Continue reading →
Like this:
Like Loading...
29 October 2014 by David Hart KC
Moseley R (ota) v. London Borough of Haringey [2014] UK 56 – read judgment
Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?
The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.
Continue reading →
Like this:
Like Loading...
12 October 2014 by David Hart KC
United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust [2014] EWCA 1271 (Civ) – read judgment
Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant challenge is not an easy task. Three connected problems commonly arise:
(1) did the public body provide adequate information to enable properly informed consultation
(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?
(3) did the consultation encompass sufficient alternatives?
In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).
The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.
Continue reading →
Like this:
Like Loading...
6 October 2014 by David Hart KC
Hansen v. Norway, ECtHR, 2 October, read judgment
In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.
You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.
Continue reading →
Like this:
Like Loading...
15 August 2014 by Adam Wagner
As a brief update to my post from last week. The Tricycle Theatre and the UK Jewish Film Festival have settled their differences after an agreement was struck to end the theatre’s refusal to host the festival.
Despite its previously robust defence of the decision, the Tricycle appears to have entirely relented on the issue of Israeli Embassy funding. A joint statement has been published, stating amongst other things:
‘Some weeks ago the UKJFF fell out, very publicly, with the Tricycle over a condition imposed by the Tricycle regarding funding. This provoked considerable public upset. Both organisations have come together to end that. Following lengthy discussions between the Tricycle and UKJFF, the Tricycle has now withdrawn its objection and invited back the UK Jewish Film Festival on the same terms as in previous years with no restrictions on funding from the Embassy of Israel in London. The UKJFF and the Tricycle have agreed to work together to rebuild their relationship and although the festival is not able to return in 2014, we hope to begin the process of rebuilding trust and confidence with a view to holding events in the future.
Continue reading →
Like this:
Like Loading...
7 August 2014 by Adam Wagner
Updated | It emerged on Tuesday the Tricycle Theatre in Kilburn has refused to host the UK Jewish Film Festival (UKJFF) for the first time in eight years. The theatre told UKJFF that they must reject longstanding funding from the Israeli Embassy if they wanted to use the venue. UKJFF refused and the relationship ended.
There has already been some excellent writing: see Nick Cohen, Archie Bland and Dorian Lynskey. Cohen makes a powerful case for the decision being anti-Semitic. I’m not going to go there, although as I have been saying on Twitter, in my view this is a bad move by the Tricycle. I thought it would be interesting, however, to investigate whether the Tricycle may have broken any laws.
Continue reading →
Like this:
Like Loading...
5 August 2014 by Guest Contributor
Last week Justice Secretary Chris Grayling reported on how often closed material proceedings (CMPs) have been sought under the Justice and Security Act 2013 (JSA), as he is required to do annually under the Act. As the first and only official consolidated presentation of how the new CMP regime is being used, this two-page written ministerial statement warrants close attention.
The Secretary of State’s report provides only numbers. In the Bingham Centre’s Review of the First Report by the Secretary of State, we have tried to match cases to those numbers and, when read in light of the cases, have found good reasons to be concern about the difficulty of verifying the accuracy of the report, the ways that CMPs are being used, and the adequacy of the reporting requirements.
What are the reporting requirements?
Continue reading →
Like this:
Like Loading...
27 July 2014 by
R(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin) – read judgment
When will a court order an inquiry into the deaths in combat of soldiers serving overseas? Following recent judgments of the English and Strasbourg courts extending the application of the European Convention on Human Rights to zones of armed conflict overseas in certain circumstances, the question is likely to arise frequently over the coming years. In R(Long), the Divisional Court strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin.
This claim involved the deaths of six military police, who were murdered by an armed mob in Majar-al-Kabir, Iraq on 24 June 2003. They were visiting an Iraqi police station and, contrary to standing orders, did not have an iridium satellite telephone with them. The Oxfordshire Coroner had previously held an inquest into the deaths, which opened in 2004 and closed with an unlawful killing verdict on 31 March 2006. He dealt with the lack of effective communications equipment in a Rule 43 report (now a Report to Prevent Future Deaths), but it could not be said in the circumstances that, had they had a radio, their lives would have been saved. As the coroner said, the only person who might have been able to help them in time was the commander of a nearby paratroop patrol and he thought it possible that “had he endeavoured to help, I would be holding an inquest into the deaths not of six brave men but of 18” – [49].
Continue reading →
Like this:
Like Loading...
23 July 2014 by David Hart KC
Coventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment
Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases. Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.
Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small” local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.
Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.
In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).
So each case is about a costs burden, which is capable of causing injustice to one or other party.
Continue reading →
Like this:
Like Loading...
16 July 2014 by Matthew Flinn
S.A.S v France (Application no. 43835/11) – read judgment
The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.
On 11th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).
Continue reading →
Like this:
Like Loading...
15 July 2014 by David Hart KC
Public Law Project v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary
Angela Patrick of JUSTICE has provided an excellent summary of this important ruling, which declared a proposed statutory instrument to be ultra vires the LASPO Act under which it was to have been made. The judgment is an interesting one, not least for some judicial fireworks in response to the Lord Chancellor’s recourse to the Daily Telegraph after the hearing, but before judgment was delivered.
But more of that after some thoughts on the discrimination ruling.
Continue reading →
Like this:
Like Loading...
15 July 2014 by Guest Contributor
PLP v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary
As the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in PLP v Secretary of State for Justice.
While we are all following the exciting live feeds on both the reshuffle and the progress of emergency legislation on surveillance, the freshly appointed Attorney General, Jeremy Wright MP, may want to cast his eyes to BAILLI.
The Administrative Court may this morning have handed him one of his first “to-do” list items. In – PLP v Secretary of State for Justice – a rare three judge Divisional Court has held that the Government’s proposal to introduce a residence test for legal aid – where all applicants will have to prove 12 months continuous lawful residence in the UK – is both ultra vires and discriminatory.
Continue reading →
Like this:
Like Loading...
10 July 2014 by Alasdair Henderson
P (A Child) [2014] EWCA Civ 888 – read judgment here.
1 Crown Office Row’s Martin Downs represented the parents in this appeal (not at first instance), but is not the author of this blog post.
In this successful appeal against care and placement orders in respect of a young infant with Polish parents, the Court of Appeal were sharply critical of comments made by the first instance judge which made it clear he had closed his mind at an early stage to the possibility of the baby being looked after by her grandparents in Poland. The Court held that both the judge and the local authority had failed to give sufficient weight to their positive obligation under Article 8 to consider ways of retaining a child within the family.
The parents in this case were Polish nationals who moved to England in 2011. Their daughter was born in September 2012. For the first five-and-a-half months of the little girl’s life, there were no concerns about the care she was receiving from her parents. However, in February 2013 she was taken to her local hospital in Warrington with a head injury which was found to be non-accidental and probably inflicted by the father. On discharge from hospital the baby was taken into foster care. Proceedings were instituted and after several hearings before HHJ Dodds concluded in December 2013 with an adoption placement.
Continue reading →
Like this:
Like Loading...
4 July 2014 by Guest Contributor
Rutherford and Ors v Secretary of State for Work and Pensions [2014] EWHC 1613 (Admin) – Read judgement here.
At the end of May, the High Court ruled that the reduction in Housing Benefit under Regulation B13 of Housing Benefit (Amendment) Regulations – commonly dubbed “the bedroom tax” – did not unlawfully discriminate against a family with a disabled child requiring an additional bedroom for overnight careers because the shortfall was covered by discretionary housing payments.
The case involved three Claimants: Mr and Mrs Rutherford and their 14-year-old grandson Warren. Warren suffers from a profound disability requiring 24-hour care from at least two people. Mr and Mrs Rutherford need the assistance of two paid careers for two nights a week. The family live in a three-bedroom bungalow rented from a housing association and specifically adapted to meet Warren’s needs. Mr and Mrs Rutherford sleep in one room, Warren in another, and a third room is used as a bedroom for overnight carers and to store medical equipment.
Continue reading →
Like this:
Like Loading...
18 June 2014 by David Hart KC
R v Ahmad and others [2014] UKSC 36, 18 June 2014 – read judgment
A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.
The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud. A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.
In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.
In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.
Continue reading →
Like this:
Like Loading...
Bank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 – read judgment UPDATED POST
Recent comments