The Supreme Court has unanimously held that the Defamation Act 2013 altered the common law presumption of general damage in defamation. It is no longer sufficient for the imposition of liability that a statement is inherently injurious or has a “tendency” to injure a claimant’s reputation. Instead, the language of section 1(1) of the Act requires a statement to produce serious harm to reputation before it can be considered defamatory.
The factual background
Mr Bruno Lachaux, a French national working in the United Arab Emirates, had an acrimonious divorce from his British wife, Afsana. In January and February 2014 British newspapers published articles making allegations about Mr Lachaux’s conduct towards Afsana, including that he had been violent and abusive, had hidden their son’s passport to stop her from removing him from the UAE and had falsely accused her of abducting him.
Mr Lachaux brought libel actions against three newspapers in respect of five articles.
The Supreme Court has rejected a challenge by lone parents with young children to the reduced benefit cap, holding by a majority of 5-2 that its discriminatory effects are justified. Although disappointing for campaigners, the judgment helps to clarify many aspects of discrimination law in the context of social and economic policy.
Background: the benefit cap
The benefit cap was first introduced in the Welfare Reform Act 2012. It applies as a limit on the total amount of welfare benefits that one household can receive if they are out of work, initially set at £500 per week (or £26,000 per annum) for families with children. As the limit applies irrespective of family composition, it has a severe effect on larger families and those such as lone parents with young children who may find it difficult to avoid it by finding work.
In the Court of Appeal, the council’s application to strike out the family’s claim that they were owed a duty under the common law given the statutory backdrop of the Children Act 1989 was allowed. In that judgement, the court identified two issues as being of chief importance. Firstly, as articulated in X (Minors) v Bedfordshire County Council and Hill v Chief Constable of West Yorkshire  AC 53, the court recognised the risk that allowing liability in negligence would serve to complicate decision-making in a difficult field and potentially drive social workers towards defensive decision-making. Secondly, the court held that there was no liability for the wrongdoing of a third party, even where such behaviour is foreseeable. This reflected the decisions in Mitchell v Glasgow City Council and Michael v Chief Constable of South Wales.
The Supreme Court undertook a rigorous analysis of the case law pertaining to the liability of local authorities for harm caused by failure to perform their functions under statute, in particular in relation to the exercise of statutory duties owed to children. Of principle importance was the nature of any assumption of responsibility for the claimant’s plight accepted by the local authority or pubic body.
The court concluded that the public policy defence illustrated in X v Bedfordshire, which dismissed on pure policy grounds the existence of a duty of care owed by local authorities towards children with whom they came into contact in the performance of their functions under the Children Act 1989, was no longer good law. The existence of any duty instead required examination of the specific facts of the case applied to the general principles outlined in Robinson v Chief Constable West Yorkshire Police. These were summarised as:
The law should adopt an incremental approach to novel situations, guided by established categories of liability, rather than basing decisions on their assessment of the requirements of public policy.
Consideration ought to be given to the distinction between harming the claimant and failing to protect the claimant from harm.
Public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except as specified to the contrary in legislation.
The court concluded that although the local authority could be liable, the necessary grounds were not satisfied in the present case. In particular, it was held there was no evidence to suggest the council had accepted responsibility for the claimants, statutory obligations being insufficient in themselves to create a duty of care. Furthermore, the council’s failings did not amount to a breach of duty. Consequently, although the family’s case may serve to protect the rights of individuals in similar circumstances, their individual case failed on the facts.
In a further Supreme Court decision this week, a retired British soldier’s appeal against the decision of the Northern Ireland courts that he should be tried by a judge rather than a jury was unanimously rejected – In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland)  UKSC 26. The case concerns the fatal shooting in 1974 of John Pat Cunningham by soldiers of the Life Guards after the Legacy Investigation Branch concluded Mr Hutchings should face prosecution over the incident. The court held that trial by jury should not be assumed to be the only means of achieving fairness in the criminal justice process. The decision is likely to further fuel the developing controversy surrounding the prosecution of soldiers for historical actions in Northern Ireland.
In the Court of Appeal, judgement was handed down in the case of KA (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 914. KA claimed asylum after describing threats made against his safety by the Taliban due to his father’s service in the Afghan Army. However, the circumstances of his fleeing Afghanistan were rejected by the Upper Tribunal as lacking credibility. Allowing his appeal, McCombe LJ held it would be unsafe to reject the appeal of a vulnerable minor on such grounds when the Respondent and the First Tier Tribunal based their assessment on a flawed interpretation of the test set out in s. 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
In the news this week…
The Prime Minister officially stood down on Friday, remaining only in post until a new Conservative leader is appointed. The first days of what might become a lively campaign to replace her saw former Linklaters associate Dominic Raab suggest Parliament could be prorogued to prevent the House of Commons attempting to thwart a no-deal Brexit, former Foreign Secretary Boris Johnson represented by a QC in the High Court in relation to (now dismissed) charges of misconduct in public office, and the Secretary of State for Environment, Food and Rural Affairs admit to class A drug use two decades ago.
The week also saw Donald Trump undertake a state visit to the United Kingdom, part of which was devoted to remembrance services for the 75th anniversary of the D-day landings. The Peterborough by-election saw Labour narrowly keep the seat vacated after the conviction of Fiona Onasanya, defeating the challenge of the Brexit Party candidate by under 700 votes.
Finally, concerns about the rule of law in the Middle East came to the fore again after the main witness in the case of a Russian businesswoman convicted of embezzlement in Kuwait was jailed for forging documents crucial to the verdict. Maria Marsha Lazareva was previously sentenced to 10 years hard labour by a Kuwaiti court on charges of embezzlement which are widely considered spurious.
Hamad Al-Allayan, the auditor of the Kuwaiti State Audit (Chamber of Accounts) was sentenced this week to six months’ imprisonment by the Kuwaiti Court of Appeal. He was found guilty of forging documents decisive to the conviction of Lazareva.
The Kuwaiti Criminal Court has quashed Lazareva’s initial conviction and set a new trial date for June 9th. However, she remains in detention pending her re-trial. As the mother of a US citizen, her plight has attracted international concern and the interest of prominent Americans, including the brother of former President George W Bush, who was quoted as saying:
“I’d hate to see U.S.-Kuwait relations damaged by this incident. But there are forces within the government that are creating this horrible situation.”
The case joins an increasing number of detentions of western nationals in middle eastern states on charges often considered to be motivated by domestic concerns. These include those of West Hampsted mother Nazanin Zaghari-Ratcliffe and former British Council worker Aras Amiri in Iran, and now released British academic Matthew Hedges in the United Arab Emirates.
On the UKHRB:
Rajkiran Barhey gave a detailed account of the decision in Poole Borough Council v GN and another
Rosalind English reported on Jonathan Sumption’s recent Reith Lectures and reviewed Jamie Metzl’s new book “Hacking Darwin”
Sapan Maini-Thompson discussed the ongoing protests concerning LGBT teaching in a Birmingham School.
The Supreme Court has found that Poole Borough Council did not owe a duty of care to two children, CN and GN, who it failed to re-house, despite the fact that they were suffering abuse from their neighbours. However, the court overruled previous authority and found that in some situations a duty of care might arise.
The Claimants, CN and GN, had been placed by the Council in
a house on an estate in Poole with their mother in May 2006. CN was aged 9 and GN
was aged 7. CN has severe mental and physical disabilities.
The family living in the neighbouring property were known by the Council to have engaged in anti-social behaviour persistently. Soon after their arrival, this family began a campaign of harassment and abuse against GN, CN and their mother which lasted for several years. This included vandalism, attacks on the family home, threats of violence, verbal abuse, and physical assaults. All measures, including eviction, anti-social behaviour orders, of sentences of imprisonment, etc. had failed to stop the abuse. Even a Home Office-commissioned independent report criticised the police and of the council’s failure to make adequate use of powers available under anti-social behaviour legislation.
Or “Human Rights and Wrongs”, as Jonathan Sumption’s third lecture is called, in his series on Law’s Expanding Empire, delivered in Edinburgh and broadcast on Radio 4 and BBC World Service.
Human rights are where law and politics meet. It can be an unfriendly meeting…”
Following these strong words, Lord Sumption briskly debunks the ideas of “natural” or “inalienable” human rights, in favour since Blackstone’s time. In principle, there is nothing so fundamental about certain rights that they cannot be overturned by democratic election. The idea of these inalienable human rights was perfectly straightforward in a world where rights were part of God’s law, or in communist societies where these rights were ordained by the ruling party. But in a secular democracy, Sumption asks, what is it that makes rights legitimate? Of course there are rights without which a community cannot function, like the right to be free of force, and the right to participate in fair and regular elections. Any further rights should be conferred by collective choice, and not because because they are thought to be inherent in our humanity, or derived from some higher law. Instead of the mystics and the totalitarians, he invites us instead to consider the 18th century enlightenment philosopher David Hume.
He rejected the whole concept of natural law … You cannot derive moral principles from abstract reasoning or empirical observation. They derive their legitimacy from collective moral sentiment.
Rights [continues Sumption] do not exist in a vacuum, They are the creation of law, which is a product of social organisation, and which is therefore necessarily a product of political choice.
The entanglement of law and ethics is always perilous when it involves the threat of prohibition. When Shenzhen scientists announced two years ago that they had edited the genes of twin human babies whilst still in vitro, voices of disapproval reverberated around the globe. Whilst it seems that gene modification of potential human life fills us with fear and loathing nothing has stood in the way of the race to refine this technology. Efforts to predict and restrict genetic engineering seem quaint and outmoded, from the UNESCO 1997 Declaration on the Human Genome and Human Rights, to the Council of Europe’s Convention in the same year to restrict the modification of the genome to therapeutic purposes only. These agreements, as well as the 2015 call by UNESCO for a moratorium on germline modification, are well past their sell by dates.
What is the scope of a school’s duty to accommodate the religion of a parent whose children attend its schools? From September 2020, it will become mandatory for “relationship education” which includes lessons about LGBT relationships to be taught in English primary schools under the Children and Social Work Act 2017. According to a petition by Muslim parents in Birmingham, however, such teaching contradicts the Islamic faith, thereby violating their freedom of religion.
The ongoing protests raise a host of questions about the boundaries between religious rights and the obligation of the state to promote social inclusion through universal and non-discriminatory education.
In this article, it will be argued that the rigorous approach taken by the Canadian courts to this issue should serve as a template for possible future consideration by the English courts and also that uneven standards in the statutory guidance for maintained and independent (including faith) schools undermine the equality duty in the UK.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.
Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.
The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.
Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.
A Clinical Commissioning Group v P (by her litigation friend the Official Solicitor) and TD  EWCOP 18
The lesson to be learned from this case is to be careful of the hands into which you may fall, should you become incapacitated and end up in a vegetative or minimally conscious state.
The patient in this case, P, was traumatised by a drug overdose in 2014. Since then she has been tracheotomy dependent and tube-fed. She is vulnerable to fitting, chest infections and other forms of ill-health. She was initially diagnosed as being in a vegetative state which was subsequently revised to that of a minimally conscious state.
At the time of the application she was in a unit specialising in rehabilitation for those suffering from neurological impairment. Staff at the Unit hold strong pro-life views. The CCG, the applicant in this case, was funding that treatment. There was no disagreement between the Official Solicitor, the CCG and the family as to the correct course of action; that Clinically Assisted Nutrition and Hydration (CANH) should be withdrawn. However, given the contrary views expressed by the staff who care for P, the CCG decided to bring this matter before the court. MacDonald J concluded that, whilst the application proceeded unopposed by all parties to it, it was appropriate to deliver a fully reasoned judgment.
The Court of Appeal unanimously ruled that a nurse’s dismissal for improper proselytising was not unfair and that the hospital trust’s decision was not in contravention of the claimant’s rights as guaranteed by Article 9 of the European Convention on Human Rights.
The claimant, a committed Christian, had been employed as a band 5 nurse by the Trust since 2007. Following a medication error, she had been given a final written warning and transferred to work in a pre-operative assessment role. In this role the claimant was required to go through a pre-operative form with the patients. The form required the claimant to make a simple inquiry into the patient’s religious beliefs; importantly “it did not open the door to further religious discussion.” 
In March and April 2016 several complaints were made by
patients about the over-zealous religious preaching of the claimant, with one
patient being told shortly before major bowel surgery that he had a better
chance of survival if he prayed to God.
Following these complaints the matron gave the claimant both oral and written warning that her proselytising was not acceptable. The claimant confirmed that she would not engage in religious discussion unless prompted by the patient.
Two further complaints were made in May and the claimant was
suspended. Whilst suspended a further complaint was made alleging that the
claimant had forced a patient to sing Psalm 23 out loud in what he described as
a “very bizarre” encounter that was “like a Monty Python skit.”
The trust investigated the claims and after a disciplinary hearing the claimant was dismissed for repeated and inappropriate misconduct, including a breach of paragraph 20.7 of the Nursing and Midwifery Council (NMC) code which prohibits nurses from expressing their own personal views in an inappropriate way.
District Judge Coleman, a judge sitting in the Westminster Magistrates Court, has issued a summons for Boris Johnson to appear in the Crown Court. He will face three charges alleging misconduct in a public office in a private prosecution brought by Marcus Ball. The offences alleged are indictable only which means that they can only be heard in the Crown Court.
Marcus Ball, a 29-year-old businessman who has brought the proceedings with the help of crowdfunding, alleges that the frontrunner for the Tory leadership lied about the amount of money which the UK sends to the EU both during the referendum campaign and during the general election campaign in 2017.
The controversial claim that £350m a week was sent by the UK to the EU and could better be spent on public services in the UK instead was a particularly eye catching aspect of the Leave campaign and attracted considerable criticism at the time and since. Some of that criticism particularly from the Institute of Fiscal Studies which branded the claim “absurd” and UK Statistics Authority whose chair described the claim as a misuse of statistics forms an important part of the case.
At issue in this procedural hearing was whether the court should issue a summons for Boris Johnson to attend court. He opposed the application and lost. He will be required to appear therefore be required to attend court for a preliminary hearing and the case will then be sent to the Crown Court.
The Human Rights Lawyers Association (HRLA) recently hosted an event at UCL on the legal and human rights implications of Brexit on Northern Ireland, which we are delighted to be able to share with you on Law Pod UK. Listen to it on Audioboom here.
Theresa May resigns during a speech in Downing Street, May 24th 2019. Credit: The Guardian
It would be virtually impossible for readers of this blog, unless they have recently returned from the International Space Station, awoken from a coma or been rescued after two weeks in the Hawaiian jungle, to have failed to notice this week’s political developments. Dispensing with them briefly, this week saw the Prime Minister announce her departure, and the subsequent commencement of a Conservative leadership campaign to appoint a new PM. Into this mix was thrown Sunday’s European Parliament elections, which saw Nigel Farage’s World Trade Organisation terms advocating Brexit Party finish first, albeit in a poll that saw advocates of a “no-deal” Brexit obtain fewer votes than those committed to preventing Brexit, if you take the combined Brexit Party and UKIP vote compared to combined Liberal Democrat, Green Party and Change UK vote.
More on Britain’s political machinations can be found courtesy of wall-to-wall coverage available pretty much everywhere. Continue reading →
Biologists are fond of using the analogy of Alice and the Red Queen to explain why, in the real world of parasites and defence immune systems, you have to run to keep still. In this post I will be looking at a similar problem in the legal world, where the rule of law paradigm is subject to competition between parliament and the judiciary. You have to keep running to keep abreast of whichever one has the flame. Who will prevail as anointed guardian of the rule of law? Does it matter, and is the race even real?
R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents)  UKSC 22.
In his analysis of the half century of argumentation on this point, Jonathan Metzer suggests that the question of who is actually in charge may be redolent of Alice in Wonderland. Anisminic replaced one confusion with another by merging errors of law and errors of jurisdiction. The effect of this ruling was, in Lord Sumption’s words,
to create what is nominally a power of review, but is in substance a right of appeal on points of law going to the merits.
For the facts and issues in this appeal, see Jonathan’s post Anisminic 2.0. David Hart QC’s post considers the Appeal Court ruling (which went the other way) here. In the paragraphs to follow I explore the dissent.
Pomphrey v Secretary of State for Health and Anor  4 WLUK 483 –— decision not yet on Bailii but available on Lawtel.
This case concerned an alleged failure to diagnose compression of nerve roots leading to cauda equina and alleged delay in operating urgently. It raises an important issue in relation to causation and the applicability of the famous decision of Chester v Afshar  UKHL 41.
The Claimant advanced a range of arguments on breach of duty
against a number of individuals in respect of a failure to refer for earlier
surgery for symptoms of early onset cauda equina, all of which failed having
regard to a careful analysis of the factual and expert evidence.
The judge did, however, find that there was a breach of duty
in respect of the delay between seeing the consultant neurosurgeon on 14
December 2011 and the actual operation which took place on 24 January 2012. The
negligent period of delay was found to be 10 days.
That breach of duty opened the door to the Claimant running an argument based on Chester v Afshar and Crossman v. St George’s NHS Trust EWHC 2878 that the same dice rolled on another day would not have resulted in ‘snake eyes’; viz. an injury which was an accepted complication of the operation, estimated at around 5%. This being a case where the consultant in question accepted that the injury had been “inadvertent” and therefore not one that necessarily would have occurred.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.