Search Results for: environmental
23 February 2014 by David Hart KC
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment
Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.
L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.
So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.
But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.
Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.
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16 July 2012 by David Hart KC
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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24 September 2017 by Sarah Ewart
In the news this month:
The Brexit Bill
The Bill for the withdrawal from the European Union has been dominating the news over the past few weeks. Mark Elliott comments that it is ‘difficult to overstate the importance’ of the bill from a constitutional standpoint, and the House of Lords Constitution Committee has said in an interim report that its political, legal and constitutional significance are ‘unparalleled’. Concern has been voiced in various quarters over the use of ‘Henry VIII’ powers (so named because of the monarch’s disdain for parliamentary restraint) which will allow the executive to bypass parliament to ‘tweak’ legislation, and a concomitant lack of sufficiently robust sunset clauses or checks and balances to the handover of such powers. For more detail, I highly recommend listening to David Hart QC’s conversation with Rosalind English on our new podcast series Law Pod, in which he details the potential consequences of the bill in general and in terms of environmental law in particular; you can read his comments here or have a listen here.
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3 August 2011 by Adam Wagner
G v E & Ors [2011] EWCA Civ 939 – Read judgment – 1COR’s Guy Mansfield QC appeared for the Respondent. He is not the author of this post.
Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 – Read judgment
The general rule in civil law cases is that the loser pays the winner’s legal costs, even if the case settles before trial. As with all general rules, there are plenty of exceptions, and many relate to public authorities. Two of those exceptions have just been chipped away at by the Court of Appeal.
Two important judgments increasing the likelihood that local authorities will have to pay out costs emerged the usual last-minute glut before the court term ended on Friday. The first concerned costs in the Court of Protection when an authority has unlawfully deprived a person of their liberty. The second was about costs in immigration judicial review claims which had settled following consent orders.
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24 June 2012 by Guest Contributor
When two Nobel Laureates, an eminent constitutional lawyer and the Secretary General of COSATU (South Africa’s largest trade union federation) are unified in their stinging criticism of a proposed Bill, it may be the time has come for a redraft. Following 293 condemnatory submissions to the National Council of Provinces’ Ad Hoc Committee, the ANC has begun to make concessions.
In an unexpected volte-face at Committee deliberations last month, the ANC tabled a raft of amendments to the current draft of the controversial Protection of State Information Bill. Key proposals include the insertion of a narrow ‘public interest defence’ in relation to a Clause 43 charge of unlawful disclosure of classified information and scrapping of the intolerably low mental element of constructive knowledge – “ought reasonably to know” – from many of the offence-creating provisions. By virtue of the former amendment, an accused would also be able to rely on a defence of ‘wrongful classification’.
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26 November 2013 by David Hart KC
Putistin v. Ukraine, ECtHR, 21 November 2013 read judgment
An extraordinary story, with a twist, and an interesting decision by the Strasbourg Court that lack of respect for the honour and dignity of a dead relative may give rise to a breach of Article 8 and its right to family life.
In 1942 various professional footballers who had previously played for FC Dynamo Kyiv but who were now working in a bakery, ran out in the strip of FC Start. Their opponents (Flakelf) were pilots from the German Luftwaffe, air defence soldiers and airport technicians.
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24 February 2014 by Guest Contributor
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
For law students who slept their way through their first latin 101 lessons in ‘ultra vires’, public law and judicial review may have seemed very detached from the realities of everyday life; less relevant to the man on the Clapham Omnibus than the rigours of a good criminal defence or protection from eviction offered by landlord and tenant law.
The Lord Chancellor may be hoping that the public and Parliamentarians are similarly unfocused.
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24 October 2011 by Melina Padron
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news:
Privacy and the media
Last week Lord Judge LCJ gave a speech on “press regulation” at Justice’s Annual Human Rights Law Conference.
His speech was an unusual one, given that judges generally refrain from commenting on the important issues of the moment. Lord Judge was supportive of Lord Justice Leveson and of the Press Complaints Commission, both targets of criticism in the context of the inquiry into the culture, practices and ethics of the press and the Leveson inquiry.
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22 July 2015 by David Hart KC
Coventry v. Lawrence [2015] UKSC 50, 22 July 2015, read judgment here
The pre-April 2013 Conditional Fee Agreement system, under which claimants could recover uplifts on their costs and their insurance premiums from defendants, has survived – just. It received a sustained challenge from defendants to the effect that such a system was in breach of their Article 6 rights to a fair trial.
In a seven-justice court there was a strongly-worded dissent of two, and two other justices found the case “awkward.”
The decision arises out of the noisy speedway case about which I posted in March 2014 – here. The speedway business ended up being ordered to pay £640,000 by way of costs after the trial. On an initial hearing (my post here), the Supreme Court was so disturbed by this that they ordered a further hearing to decide whether this was compatible with Article 6 .
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14 September 2016 by Alasdair Henderson
Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.
This is the second in a series of posts on a very important judgment on the human rights obligations imposed on the British Armed Forces when operating abroad. The background to the case can be found in Dominic Ruck Keene’s post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here.
This short post looks at the third question raised in this judgment, namely whether or not the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings.
As well as being a fascinating question itself, this is part of a wider issue about the use of international law in the domestic courts. Countries are usually divided into ‘monist’ and ‘dualist’ legal systems. In a monist system international law is automatically included into domestic law. However, in a dualist system like the UK the general principle has always been that international treaties must be explicitly incorporated into UK domestic law by Parliament before they can be applied to an individual case.
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28 April 2013 by David Hart KC
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment UPDATED
A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
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11 December 2013 by David Hart KC
R (Edwards & Pallikaropoulos) v. Environment Agency et al, Supreme Court, 11 December 2013 read judgment
This is the last gasp in the saga on whether Mrs Pallikaropoulos should bear £25,000 of the costs of her unsuccessful 2008 appeal to the House of Lords. And the answer, after intervening trips to the Supreme Court in 2010 and to the CJEU in 2013, is a finding by the Supreme Court that she should bear those costs.
The judgment by Lord Carnwath (for the Court) is a helpful application of the somewhat opaque reasoning of the European Court on how to decide whether an environmental case is “prohibitively expensive” per Article 9(4) of the Aarhus Convention, and thus whether the court should protect the claimant against such liabilities. The judgment also considers the guidance given by A-G Kokott more recently in infraction proceedings against the UK for breaches of that provision: see my post.
But note that the dispute has been largely overtaken by recent rule changes, and so we should start with these before looking at the judgment.
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22 December 2012 by David Hart KC
Chagos Islanders v. United Kingdom, ECtHR 4th Section, 11 December 2012 read admissibility decision
The set of injustices which led to these claims is well known – and see my posts here and here. For the uninitiated, in the 1960s, the US wanted Diego Garcia (one of the Chagos Islands) as a major air base. It spoke nicely to the UK, its owners, who consequently evicted and banned all the inhabitants from it and the neighbouring islands. The constitutional arrangements were apparently decorous. A new UK colony was established (the British Indian Ocean Territory or BIOT) with a Commissioner to make laws for the peace, order and good government of the Territory.
The UN was told that the population consisted of migrant workers, their position had been fully protected, and they had been consulted in the process – none of this in fact happened. Those evicted mainly went to Mauritius and the Seychelles. So the peace, order and good government in fact forthcoming from the UK amounted to total depopulation for military objectives.
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23 April 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The legal battle between Sir Cliff Richard and the BBC has begun in the High Court.
In August 2014, police raided Sir Cliff’s home based on an allegation of historic child sexual abuse. The BBC broadcast live footage of the raid filmed from a helicopter. The singer was interviewed under caution, but never charged.
Sir Cliff alleges that the BBC’s coverage of the police raid on his home was a serious invasion of his right to privacy, for which there was no lawful justification. He also alleges breaches of his data protection rights. The singer seeks substantial general damages, plus £278,000 for legal costs, over £108,000 for PR fees which he spent in order to rebuild his reputation, and an undisclosed sum relating to the cancellation of his autobiography’s publication. He began giving evidence on the first day of the hearing.
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17 November 2011 by Rosalind English
BUAV v Information Commissioner and Newcastle University (EA/2010/0064) – read judgment
There is no doubt that freedom of expression plays a starring role in the human rights fairy tale. While she is carried aloft on the soaring rhetoric of citizens’ rights from the newsrooms to protesters’ rallies, the right to information, her shy stepsister, is rarely allowed out. How can that be? Surely we can’t have the one without the other?
The key lies in the Strasbourg Court’s traditionally restrictive interpretation of the relevant part of Article 10 – “the freedom to … to receive and impart information” (10(1)). Although the right to information is explicit (unlike many of the other rights the Court has conjured from the Convention), it does not entitle a citizen a right of access to government-held information about his personal position, nor does it embody an obligation on the government to impart such information to the individual (Leander v Sweden (1987) 9 EHRR 433). This approach is changing, particularly in relation to press applicants. But the culture remains hostile; as the Court says “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII – a self-serving statement if ever there was one, given that it is not the Convention but the Court’s own case law that has been so tight-fisted in the past.
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