Category: Costs and Procedure


Chakrabarti debates Clarke on secret courts bill

7 March 2013 by

ClarkerabartiThe Constitutional and Administrative Bar Association (ALBA)  hosted an invigorating debate on Tuesday night, pitting Minister without Portfolio Ken Clarke against Shami Chakrabarti, Director of Liberty, over the question of Closed Material Procedures (CMPs) in civil claims, as proposed in the Justice and Security Bill.

The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.

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Prohibitive costs – further thoughts

25 October 2012 by

R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion

In my post of yesterday, about this opinion of the Adocate-General, I set out the context in which the Supreme Court was asking for guidance from the CJEU on how to provide for costs in environmental cases, given that the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”

As I put it, the first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Roman Abramovich. Any costs liability may deter someone on state benefits.

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When does a case become “prohibitively expensive”?

24 October 2012 by

R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated

In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention. 

My further thoughts on this case are found here.

The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.

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A bluffer’s guide to human rights courts

10 September 2012 by

Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?

Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.

If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.

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Can a judgment in default of defence be in breach of Article 6?

7 September 2012 by

C-619/10, Trade Agency Ltd v. Seramico Investments Ltd, CJEU, 6 September 2012

This case in the EU Court of Justice may sound rather abstruse, but is actually quite important. When someone starts a claim in the English courts for, say, a debt owed, and the defendant does not put in a defence, the claimant can simply ask the court to enter judgment for the sum claimed, and can bring enforcement proceedings based upon that judgment. In this procedure, the court is acting administratively, and typically no judge will be involved in the process. All very simple then.

But that is not what happened in this case. The complication was that  the claimant wished to enforce the English judgment in Latvia. It could do this using an EU Regulation about the enforcement of judgments. But the Latvian court was concerned by two aspects of the case, firstly that, according to the debtor, it had not been informed of the commencement of the English proceedings, and secondly that the default judgment gave no reasons. So they asked the EU Court for its guidance. Hence this judgment of today.

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A coach and Aarhus through the planning system? Third party rights under scrutiny

15 August 2012 by


The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties.  A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.

The challenges raise a whole host of issues – the key ones are:

(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;

(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;

(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;

(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;

(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.

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Anglo American: a right to sue in the UK as well as in South Africa?

16 July 2012 by

Flatela Vava et al v. Anglo American South Africa Ltd [2012] EWHC 1969 (QB)  16 July 2012, Silber J read judgment

Back to the problem of when and where you can sue various members of a group of companies. In the Cape case (for which see my post), a parent company was held liable for failing to ensure that its subsidiary properly managed the risks posed by asbestos. In this case of Vava, the claimants wanted to sue a South African registered holding company (AASA) in the UK, on the basis that the real decisions were taken in the UK, and hence AASA were domiciled in the UK for purposes of suing them.

The case came before Silber J, on an application by the claimants for documents relevant to this jurisdictional issue. AASA resisted, on the basis that there was not a good arguable case that it could be sued in England, and therefore it did not have to produce the documents relevant to this issue.

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Pssst… no secret hearings in naturalisation cases

22 May 2012 by

AHK and Others v The Secretary of State for the Home Department [2012] EWHC 1117 (Admin) – Read judgment

Secrecy and secret justice are rarely out of the public eye. The Queen’s speech included plans to allow secret hearings in civil claims, at a time when their use is highly controversial. The government argues they are necessary to safeguard national security. Civil liberties groups and even the Special Advocates who help administer them, regard them as a bar to real justice and fair hearings.

So it seems appropriate at this time that the High Court has handed down an important decision on the use of Closed Material Procedures (CMP) in Judicial Review claims relating to naturalisation (the process by which foreigners can be ‘naturalised’ as British citizens). In simple terms, this is a variety of procedure where the government can rely on evidence which it has not disclosed to the opposing party, in a closed hearing. In the closed proceedings, the Claimants are represented by Special Advocates, who are subject to strict rules relating to what they can and cannot tell their clients.


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Libel on the internet: Christian author takes on Dawkins and Amazon

16 May 2012 by

Mcgrath v Dawkins, Amazon and others [2012] EWHC B3 (QB) -read judgment

In an interesting ruling on a strike-out action against a libel claim, a High Court judge has delineated the scope for defamation in blog posts and discussion threads where the audience is small and the libel limited.

Background

The claimant, C,  is the author of a book entitled “The Attempted Murder of God: Hidden Science You Really Need To Know”. Published at the same time on the same general topic, but taking the opposite side, was “The Grand Design: New Answers to the Ultimate Questions of Life” by the very well-known scientist Professor Stephen Hawking and Leonard Mlodinow.  Both books were available for purchase through the Amazon UK website run by the third defendant.

Amazon includes an online public-access facility, through which any member of the public may publish their own review of a book for sale on the site, and others may post comments on that review, or on previous comments, so creating a “thread” which may be read by any internet user worldwide.  Since Prof. Hawking’s book was likely to attract far more interest among readers than C’s, he decided to raise the profile of his own work. In September 2010 he posted a purported review of the Hawking book, signed by “Scrooby”, which began by giving the details of his own book, and then went on to claim that this book “answered all doubts raised in [Hawking’s] book” and was an “antidote to this misguided book”. As the judgment continues
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Compelling reasons but no need for truly drastic circumstances: second stage immigration appeals revisited

23 March 2012 by

JD (Congo)  and others v Secretary of State for the Home Department, Public Law Project [2012] EWCA Civ 327

The Court of Appeal has considered the test for granting permission at the second stage of appeal in immigration cases, when someone wishes to appeal from the Upper Tribunal to the Court of Appeal. The test requires showing that:

(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal.
But these test cases were of special interest, because they involved situations where the appellant has succeeded before the First-Tier tribunal but failed in the UT after the Secretary of State’s appeal succeeded, or where the appellant was unsuccessful at both levels, but the FTT had made a material error of law and the UT made the decision afresh. Previous authority showed no clear approach in these circumstances. The Court stressed that the test for permission at the second stage of appeal is higher than the first stage test.
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Sound of tumbleweed greets secret civil trials proposals

14 February 2012 by

65 responses to the Justice and Security Green Paper consultation, which proposes introducing “Closed Material Procedures” – secret trials – into civil courts, have been published on the official consultation website. According to the site there are potentially 25 more to come.

Whilst it is a good thing that the responses have been published at all, the low number of responses is a little depressing. In a country of over 60 million people, and given the proposals could amount to a significant erosion of open justice, 90 responses seems a little thin. Granted, many of the responses are from organisations or groups of individuals, such as the 57 Special Advocates who have called the proposals a “departure from the foundational principle of natural justice“. But the low number surely represents the fact that as yet the proposals have failed to capture the public imagination.

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Aarhus and environmental judicial review: cracking legal costs per Jackson LJ

2 February 2012 by

In October 2011, I posted on an important consultation, Cost Protection for Litigants in Environmental Judicial Review Claims, in which  the Ministry of Justice wheeled out its proposals to get it out of the various scrapes caused by the expense of environmental challenges.  The Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and both the European Commission and the Aarhus Compliance Committee don’t think that the English system complies – it costs way too much.

In a nutshell, MoJ were suggesting that there should be a starting point in the form of costs orders designed to protect unsuccessful claimants against excessive costs incurred by successful defendants – unsurprisingly called Protective Costs Orders. If a Claimant got permission to challenge an environmental decision, but then lost on a full judicial review hearing, he or she should have to pay no more than £5,000. In return, he should not be able to recover any more than £30,000 if he won. MoJ’s consultation period has now closed, and a very significant response has been received from Lord Justice Jackson, who recently carried out a set of mammoth reviews of litigation costs in all areas of the law.

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More secret trials? No thanks

31 January 2012 by

A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.

Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.

If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.

As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:

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What price unfair dismissal, in times of austerity?

17 December 2011 by

Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence [2011] UKSC 58 – read judgment.

Although not strictly speaking a human rights case, the Supreme Court handed down an important employment law decision this week which has significant impact on employees’ ability to claim damages if they are sacked unfairly or if an internal disciplinary process isn’t properly followed by their employer.

Both cases, which had been conjoined for the purposes of the appeal, dealt with situations where an employee had a contractual right to a particular disciplinary procedure but the procedure was not properly followed. The employees argued that as a result of the flawed disciplinary process, incorrect and highly damaging findings of fact were made against them, which prevented them from finding future employment. In both cases the incorrect findings of fact concerned allegations of inappropriate sexual conduct, in the case of Mr Edwards (a surgeon) with patients and in the case of Mr Botham (a youth worker) with teenage girls in his care, so the employees’ upset is readily understandable.

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Reclaiming the fruits of crime will not be made harder, rules Supreme Court

4 November 2011 by

Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 – Read judgment

The Supreme Court has ruled that applying the civil standard of proof (‘balance of probabilities’) to confiscation proceedings does not breach Article 6 of the European Convention on Human Rights (right to fair trial).

David Gale and his ex-wife Teresa were accused of drug trafficking, money laundering and tax evasion in the UK, Spain, Portugal and elsewhere. They were never convicted. The Serious Organised Crime Agency (SOCA), whose job it is to identify and recover the fruits of criminal activity, nonetheless sought to recover these fruits from David Gale and Teresa (‘the appellants’) by recovering property worth about £2 million. SOCA obtained an order to do so under Part 5 of the Proceeds of Crime Act 2002 (POCA).

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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