Updated| R (Infinis) v. Ofgem & Non-Fossil Purchasing Agency Limited, Interested Party  EWHC 1873 (Admin) Lindblom J, 10 August 2011 Read judgment
In a recent post, I suggested that successful claims under Article 1 Protocol 1 (the human right to peaceful enjoyment of property) faced all sorts of difficulties, hence the particular interest of that decision in Thomas which bucked the trend. Rash words at the end of a busy legal term: hard on the heels of that judgment of the Court of Appeal, there comes this further example of an A1P1 claim succeeding in the environmental context.
This time, the claim arose as a result of a judicial review, where the judge decided that the regulator had come to an unlawful decision, and hence that unlawfulness gave rise to a damages claim against the regulator.
Update | Thomas v. Bridgend County Borough Council  EWCA Civ 862, Court of Appeal. Read judgment
Conventional wisdom has it that an Article 1 Protocol 1 (the human right to peaceful enjoyment of property) environmental claim faces all sorts of difficulties. The claimants may have a right to the peaceful possession of property, but that right is immediately counter-balanced by the public interest of the scheme under challenge. Furthermore, the court does not look too closely at the detail when applying the proportionality test, as long as the scheme is lawful. Or does it?
Our case is a refreshing example of where manifest injustice was avoided by a successful claim under Article 1 of the First Protocol of the ECHR. It also shows off the muscles of the duty to interpret legislation, under section 3 of the Human Rights Act 1998, in accordance with the ECHR.To find what it was about, we need to go to the Hendre Relief Road in Pencoed, Bridgend and those who live nearby.
Atapattu, R. (On the Application of) v The Secretary of State for the Home Department  EWHC 1388 (Admin) – read judgment
1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.
This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.
The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence. Continue reading →
Ofulue v United Kingdom, Application no. 52512/09 – read judgment
The Strasbourg Court has confirmed that the inadmissibility of a “without prejudice” letter neither interferes with an applicant’s fair trial rights under Article 6 nor does it prejudice their rights to enjoyment of property under Article 1 Protocol 1 where the production of such a letter might have proved their title in proceedings challenging adverse possession.
The applicant was the registered owner of a property in London which became subject to adverse possession. In the dispute over whether or not her title had been extinguished she sought permission to produce a “without prejudice” letter from the tenants which had been written some years before making an offer on the house. Continue reading →
Sinclair Collis Limited, The Members of National Association of Cigarette Machine Operators (Interested Party) v Secretary of State for Health  EWHC 3112 (Admin) – Read judgment or Rosalind English’s analysis of the decision
The High Court has ruled that the Secretary of State for Health did not breach the human right to peaceful enjoyment of property or European Union law by banning the sale of tobacco products from automatic vending machines.
Updated | We posted earlier on the Supreme Court ruling in Manchester City Council (Respondent) v Pinnock (Appellant), that requires courts to be satisfied that any order for possession sought by local authorities must be “in accordance with the law”, and (ii) “necessary in a democratic society” – that is, that it should be proportionate in the full meaning of the word.
How far this takes us from the previous position, where the role of the county court was limited to conducting a conventional judicial review of the councils’ decision in such cases, remains to be seen.
Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant)  UKSC 42 (On appeal from the Court of Appeal  EWCA Civ 649) Read judgment
The Supreme Court has ruled that ante-nuptial arrangements should be binding and enforceable in ancillary proceedings. Thus in future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it.
Although human rights were not in issue in this litigation, there is an interesting question to explore here in relation to the parties’ rights to peaceful enjoyment of their possession without interference by the state (in the form of a court order reversing the provisions of a private settlement). Now the Supreme Court has given nuptial agreements considerably more weight in the fall-out folllowing marital breakup the likelihood of a Convention-based challenge in this context falls away but does not disappear altogether because the statutory regime still obliges courts to interfere with agreements if they are considered unfair in any way, or prejudicial to the children of the marriage.
First, the following summary is based on the press release of the case published on the Supreme Court website.
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