In these conjoined appeals the Court of Appeal (Sir Terence Etherton MR, Irwin and Coulson LJJ.) have taken the opportunity to deal with a number of issues relating to the reasonableness and proportionality of costs in PI and Clinical negligence cases and the proper approach to the assessment of those costs.
The case is important because it considers and explains the unique position of ATE insurance premiums in clinical negligence cases. In clinical negligence it is almost always necessary for an ATE insurance policy to be obtained by a Claimant to insure against the risk of incurring a liability to pay for an expert report or reports relating to liability or causation. Specifically, the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (no.2) Regulations SI 2013/739, provide (by way of exception to the general rule in s.46 LASPO 2012) that such premium (insofar as it relates to the risk of incurring liability to pay of expert reports relating to liability or causation in respect of clinical negligence in connection with the proceedings) may be recovered. Brooke LJ had stressed in Rogers v. Merthyr Tydfil County Borough Council  EWCA Civ 1134 the availability of such ATE insurance and the recoverability of the relevant premium, is an important means by which access to justice continues to be provided in clinical negligence cases. It was perhaps therefore unsurprising that the present Court of Appeal began their analysis of the issues in the instant case by saying:
Access to Justice must therefore be the starting point for any debate about the recoverability of ATE insurance premiums in any dispute about costs.
Outgoing Secretary of State for Justice David Gauke. Credit: The Guardian.
The week ahead will, barring some extreme political drama, give us a new Prime Minister, and with it, the inevitable cabinet reshuffle. Some ministers have already made clear they believe they are unlikely to remain in post after the new PM’s appointment on Wednesday, in particular the Chancellor Phillip Hammond, and the Secretary of State for Justice David Gauke.
Whoever takes over at the Ministry of Justice will have a significant inbox. Cuts to legal aid were brought to the fore this week after it emerged a relative of those killed in the 2017 terrorist attacks at London Bridge was represented pro-bono by lawyers from international corporate law firm Hogan Lovells (see The Independent here). Mr Gauke used his forthcoming departure from post to propose scrapping short custodial sentences in a bid to reduce re-offending rates. However, the incoming Lord Chancellor will still be considerably better off than their new boss, for whom the “to do” list includes getting an oil tanker back from Iran and concluding Brexit.
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: The Guardian
The House of Commons has passed amendments which are likely to liberalise the law on abortion and same-sex marriages in Northern Ireland.
The amendments were added to the NI Executive Formation Bill. The first was put forward by Conor McGinn (Labour). It states that if the NI Assembly is not restored by the 21st October, the government must create secondary legislation to allow same-sex marriage in Northern Ireland. This means there will be no further debate in the House of Commons, because the government will make use of regulations. The second amendment, tabled by Stella Creasy (Labour), has a similar effect. However, both are subject to the condition that the Northern Irish Assembly can legislate to change the law.
Prior to the vote, Ms Creasy said “At this moment in time, if somebody is raped in Northern Ireland and they become pregnant and they seek a termination, they will face a longer prison sentence than their attacker”.
The Conservative leadership contenders were split on the vote. Boris Johnson stated that both subjects were devolved matters, whilst Jeremy Hunt voted for both proposals. Karen Bradley (the Northern Ireland Secretary) and Theresa May (PM) abstained.
Unusually, MPs in the Scottish National Party were given a free vote. The party ordinarily abstains from voting on devolved issues in other countries. Continue reading →
The ‘F’ word is back in use, famines have returned. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. People living in the Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid.
The UK Human Rights Blog – edited by barristers at 1 Crown Office Row – is seeking recent law graduates to contribute regular articles on human rights cases handed down by the courts in Scotland, Northern Ireland and Strasbourg.
We are looking
for about five contributors in total to assist us for a period of up to a year,
with each contributor focusing on a particular jurisdiction.
Contributors would be expected to produce about five to ten blog
posts over the course of the year.
If you are interested, please email Jim Duffy (firstname.lastname@example.org) with a copy of your CV and an article relating to a recent human rights case handed down in one of the above jurisdictions (word limit: 1,000 words).
Please note that contributors should hold a law degree or graduate diploma in law as of this summer, and that the Scottish/NI contributors will be law graduates from universities in those countries.
London has just experienced its largest ever celebration of Pride – arranged for the weekend after the 50th anniversary of the Stonewall Riots so as to allow thousands of British people to fly out to New York to participate in the official commemoration. This is a striking example of the influence of a particularly American method of effecting social change adopted with much success in the UK – albeit there has not been much by way of rioting here.
It is probably a myth that the Stonewall riots were fuelled by mourners drinking to relieve their grief after Judy Garland’s death in London and funeral in New York City – but possibly the closest the UK came to watching similar scenes was 25 years later and was connected to the death of the artist and Outrage supporter, Derek Jarman. Peter Tatchell arranged a candlelit vigil outside the Houses of Parliament on 21st February 1994 to mark the death of the great film maker. The other purpose of this gathering was to enable a demonstration to take place right outside the Palace of Westminster just as the Commons were voting on establishing an equal age of consent. When Parliament voted for a compromise of 18 years of age, the 5,000 or so demonstrators invaded the grounds of the Palace and Police and Commons staff struggled to close the great doors of Parliament to keep them out.
In Hong Kong, protests have continued against
a proposed law allowing extradition of Hong Kong residents to China. On Monday
1 July, campaigners delivered a letter to the UK government, petitioning the
government to change the status of the British National (Overseas) Passport to include
an automatic right to live and work in the UK. The government has yet to
formally respond to the petition. However, Foreign Secretary Jeremy Hunt has
stated that he is ‘keeping his options open’, and threatened ‘serious
consequences’ if China fails to honour the Joint Declaration treaty of 1984 (which
stipulated the terms of the 1997 handover).
Re AB (Application for reporting restrictions: Inquest)  EWHC 1668 (QB) 27.6.19 (judgment here)
When seeking any order it always helps to make the right application, to the right court, following the right procedure. Although when it does go horribly wrong it at least provides valuable learning for the rest of us.
So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.
The Agudas Israel Housing Association (“AIHA”) owns and allocates social housing exclusively to members of the Orthodox Jewish community. In these proceedings it was argued that Z, a single mother with four children, had suffered unlawful discrimination when Hackney council had failed to put her name forward for suitable housing. This was because of AIHA’s practice of only letting its properties to members of the Orthodox Jewish community. Although the nominal respondent in these proceedings was Hackney LBC this was only because in practice Hackney nominates properties owned by the AIHA. Primarily the challenge was to AIHA’s allocation policy.
It was common ground that AIHA’s arrangements constituted direct discrimination on grounds of religion. The question was whether this discrimination was lawful. The Divisional court held that it was, being a proportionate means of compensating a disadvantaged community (at  EWHC 139 (Admin)).
A number of reports and warnings on working conditions for junior judges, the criminal justice system’s treatment of victims of sexual violence, and prison sentencing for individuals with mental health issues have been published this week.
The Criminal Bar Association has warned that junior judges are being put on what are in effect zero-hours contracts, as their working days have been slashed and requests are being made for them to sit at the bench at impossibly short notice. The Guardian’s legal affair correspondent Owen Bowcott attributes the worsening working conditions to ‘a fresh round of austerity’, noting that the Ministry of Justice has suffered deeper cuts than any other Whitehall department since 2010. Conversely, the MoJ insists that the reason for the change is that the number of cases going to court has fallen and therefore fewer recorders are required. Caroline Goodwin QC, vice-chair of the Criminal Bar Association, said: ‘Exactly how recorders are to fulfil their sitting obligations and maintain any real career progression simply beggars belief.’
Baroness Newlove, the outgoing victim’s commissioner for England and Wales, has warned in her annual report that there has been a ‘breakdown in confidence between victims of sexual violence and the criminal justice system’. She cited recent data that suggests fewer than 2% of victims of sexual assault will see their perpetrator convicted in the courts. Arguing that the criminal justice system had become a ‘hostile environment’ for victims, Newlove called for them to be offered free legal advice before consenting to handing over their phones or personal records, expressed concern over defence barristers cross-examining victims on their previous sexual history, and echoed Sir John Gillen’s call for a ‘large-scale publicity campaign and training for juries’ to counteract rape myths and stereotyping.
In the Guardian, Fern Champion, a survivor of sexual violence who is campaigning to ensure access to specialist counselling services, observed that rape crisis centres and services are being forced to turn thousands of women away because high demand and long-term underfunding have resulted in waiting lists as long as 14 months. She expressed concern that the Tory leadership candidates Boris Johnson and Jeremy Hunt demonstrate ‘clear inability to understand’ the extent and severity of the crisis. In the same paper, Emily Reynolds called for a duty to be imposed on employers to prevent sexual harassment in the workplace.
Ten years since the publication of the landmark Bradley Report, a new report by the Centre for Mental Health has recommended further change to ensure that people who suffer from mental ill-health and addictions are not sent to prison when alternatives are more effective. The report finds too many people are sentenced to short prison sentences without any pre-sentence report on their needs, and recommends that Liaison and Diversion services should be resourced to enable effective screening of all those who come into police custody or attend voluntarily.
In Other News
China, North Korea and Hong Kong have been in the headlines this week for a number of diplomatic developments which engage human rights issues.
At the G20, President Trump and Xi Jinping agreed to restart trade talks, with the US president saying he would not impose threatened tariffs on Chinese goods, and indicating his readiness to lift a ban on American companies selling components to Huawei. Writing in the Times, Philip Sherwell observed that the American president ‘seemed most at ease among authoritarians’ and deflected questions about human rights abuses in Russia and Saudi Arabia.
An impromptu early morning tweet at the G20 led to President Trump becoming the first United States leader to enter North Korea, during a hastily arranged meeting with Kim Jong-un at the border with South Korea. The two men then crossed the border to greet the South Korean president, Moon Jae-in. Four months after the failure of Trump and Kim’s last summit in Vietnam, the three leaders talked for just under an hour before announcing that teams of North Korean and US diplomats will resume negotiations on denuclearisation. Kim stated that the meeting indicates an intention to ‘bring an end to the unpleasant past and build a new future’, while Trump said it would ‘start a process and we will see what happens’, and Moon characterised it as ‘a significant milestone in the peace process on the Korean peninsula’.
Responses have been mixed. Professor Robert Kelly of South Korea’s Pusan National University derided the meeting as a ‘photo op for the 2020 election’ driven by Trump’s ‘lust for optics and drama rather than substance’. Taking a similar tone, Victor Cha, a former American negotiator with North Korea, said ‘theatrics are no substitute for denuclearisation’. In contrast, Pope Francis praised the meeting as a ‘good example of the culture of encounter’.
In the Times, Richard Lloyd Parry observed that the ‘gaping divide’ between the ideology of the two sides could render ‘Mr Trump’s hop across the border’ meaningless: ’Kim does not want western style capitalism, because of the danger that it would unlock unrest in his cowed and isolated population’. As with Trump and Kim’s February summit, there was no discussion of North Korea’s woeful record of ‘systemic, widespread and grave human rights violations’, in the words of a 2014 UN Report into conditions in the country.
In Hong Kong, around two million people marched to demand the resignation of leader Carrie Lam a day after she pulled back from a bitterly unpopular proposed law that would allow extradition to China. Lam’s apologises and offers to ‘postpone’ the measure did little to settle public outcry against the bill, which could allow China to exert more influence in Hong Kong to silence critics, undermine civic discourse, and erode the independence of the judiciary.
In the Courts
In Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor  EWCA Civ 1099, the Court of Appeal unanimously rejected an appeal against a Divisional Court ruling that the Agudas Israel Housing Association’s arrangements for the allocation of social housing, which are currently allocated only to members of the Orthodox Jewish community, were lawful. In his judgement, Lord Justice Lewison pointed with approval to Hackney’s evidence that ‘AIHA’s allocation arrangements are valuable for the purpose of alleviating high levels of child poverty in the Orthodox Jewish community’.
In Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1)  EWCOP 22 Mr Justice Hayden identified a number of principles determining whether permission should be granted in applications for the appointment of personal welfare deputies. The three young people on whose behalf the applications were a non-verbal 24-year-old man with autism, epilepsy and severe learning difficulties; a 24-year-old woman with Down’s Syndrome and a learning disability; and a 20-year-old man with severe autism, requiring constant supervision. In his judgement, Mr Justice Hayden emphasised that the ‘defining principle’ of the Mental Capacity Act 2005 was the ‘recognition of the importance of human autonomy’ in the presumption set out at Section 1(2) that ‘a person person must be assumed to have capacity unless it is established that he lacks capacity’.
The Campaign Against Arms Trade argued that there was a large body of evidence which demonstrates overwhelmingly that Saudi Arabia has committed repeated and serious breaches of international humanitarian law during the conflict in Yemen. CAAT claimed, in particular, that Saudi Arabia has committed indiscriminate or deliberate airstrikes against civilians, including airstrikes which have used “cluster” munitions, and which had targeted schools and medical facilities.
The Court of Appeal held that the decision-making process had been irrational, as it had not included an assessment as to whether there had been previous breaches of international humanitarian law in the past, without which there could not be a proper assessment of the risk of future breaches.
In a bombshell ruling on Thursday last week, the Court of Appeal (Sir Terence Etherton MR, Irwin, Singh LJJ) held that the UK government’s failure to suspend licences for the sale of military equipment to Saudi Arabia was irrational, and thus unlawful. This was based on a finding that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Under this instrument, Member States must deny a licence for the sale of arms to other states if there is “a clear risk” that the military equipment exported might be used “in the commission of serious violations of international humanitarian law”. In this case, there was a substantial risk of their use in the conflict in Yemen. The issue will now be remitted to the Secretary of State for reconsideration.
Government misuse of data continues to be a hot topic, as hearings have begun for Liberty’s landmark judicial review under the Investigatory Powers Act 2016. Meanwhile in Parliament, the Joint Committee on Human Rights has launched a new inquiry into ‘Privacy and the Digital Revolution’. The committee received evidence including written submissions from Privacy International, Liberty, the Information Commissioner’s Office. In its findings so far, it has emphasised a widespread lack of knowledge and understanding about how personal data is being used, threats posed by large-scale data collection to freedom of expression and association, and the role of ‘baked-in’ discrimination in data collection algorithms. These findings will supplement the government’s Digital Harms white paper, announced in April.
The Equality and
Human Rights Commission has published a report into legal aid and access to
justice for discrimination cases. Its recommendations include reforming the
telephone service to make reasonable adjustments for disabled users, adjusting
the threshold and financial evidence requirements for financial eligibility, and
addressing the asymmetry in terms of claims for legal representation between
discrimination and other cases. The full report is available here.
The Court of Appeal yesterday overturned the decision on Nathalie Lieven J in the Court of Protection that doctors could perform an abortion on an intellectually disabled woman who was 22 weeks pregnant without her consent. The decision had been made despite opposition by the woman’s mother and social worker, and had led to some international controversy, including a transatlantic intervention by US Senator Marco Rubio. Lieven J stated in her judgement that it would be a “greater trauma” for the woman to have a baby removed into care post-pregnancy than to have an abortion, stating “I have to operate in [her] best interests, not on society’s views of termination.” She also suggested that the woman, who was considered to have a mental age of between 6 and 9, wanted a baby “in the same way that she would like a nice doll”. The judgement of the Court of Appeal is not yet published.
In the courts
Liberty, R (On the Application Of) v Director of Legal Aid Casework: in 2017, Poole BC issued a public spaces protection order to prohibit rough sleeping in the town centre. This was issued despite advice from the Home Office that PSPOs could not be used for such a purpose. Ms Sarah Walker, a homelessness worker, sought to challenge the decision under s.66 of the Anti-Social Behaviour, Crime and Policing Act 2014, and was refused legal aid for making that challenge. Murray J upheld the Director’s decision to refuse legal aid. Despite submissions about the precariousness of her (and many others’) circumstances, he held that Ms Ward was not seeking a ‘personal’ or ‘material’ benefit as required by paragraph 19(3) of LASPO 2012, read in light of the Ministry of Justice’s 2009 consultation paper. In light of this conclusion, the question of whether a s.66 challenge constitutes ‘judicial review’ under paragraph 19(10) was not addressed.
Birmingham City Council v Afsar & Ors: this case related to the recent protests outside Anderton Park School in Birmingham, against the teaching of LGBTQ relationships to young children. Warby J discharged injunctions that had been granted without notice at the end of May, on the basis of a failure to comply with the duty of full and frank disclosure. However, he granted fresh interim injunctions, as he considered that the Council had demonstrated that it would probably succeed at trial in showing a risk justifying an injunction, and that the fresh injunctions would not amount to ‘improper restraint of lawful protest’. A more detailed weighing up of Articles 9, 10, 11 ECHR and Article 2 Protocol 1 awaits in the substantive hearing.
Chief Constable of Norfolk v Coffey: a front-line police officer with serious hearing loss applied to be transferred from the Wiltshire Constabulary to the Norfolk Constabulary, but was refused because her hearing fell “just outside the standards for recruitment strictly speaking.” The police officer was awarded compensation in the Employment Tribunal, on the basis of discrimination based on a perceived disability, under s.13 and Sch 1 of the Equality Act 2010. the Chief Constable appealed. In dismissing that appeal, the court emphasised the Chief Constable’s failure to take into account the Home Office guidance, and dismissed any suggestion that front-line duties were different in Norfolk and in Wiltshire as ‘half-baked’.
MacKenzie v The University of Cambridge: a lecturer in the Faculty of Law at the University of Cambridge was dismissed in 2013. Upon a challenge, the Employment Tribunal made an order for re-engagement following unfair dismissal under Part X of the Employment Rights Act 1996. The claimant sought to enforce this decision by issuing judicial review proceedings in the High Court, relying on s.3 and s.6 HRA 1998, Articles 6 and 13 ECHR, and Article 1 of the first Protocol. The court held, however, that ss.115-117 of the Employment Rights Act indicated that an ‘order for re-engagement’ did not create an ‘absolute and indefeasible obligation’ on the employer to re-engage the employee, or an equivalent right in the employee to be re-engaged. Therefore, in the absence of special circumstances, the order was not enforceable in the High Court, and the application for judicial review was dismissed.
On the UKHRB
Amelia Walker discusses the investigation into abuse at Brook House.
On Episode 85 of Law Pod UK, Emma-Louise Fenelon talks to Jo Moore and Laura Bruce about equality, diversity, and access to the Bar.
Thomas Beasley reviews the Supreme Court’s decision on ‘intentional homelessness’ in Samuels v Birmingham City Council.
On Law Pod UK Rosalind English discusses with Alaisdair Henderson the Welsh government’s decision to scrap the M4 Newport relief road.
Plans to build a fourteen mile, six lane motorway through the Gwent Levels south of Newport to relieve congestion on the M4 have been scrapped by the Welsh government. The announcement by first minister Mark Drakeford was welcomed by environmentalists, local residents and small businesses who opposed the scheme at last year’s public inquiry. Alasdair Henderson, Dominic Ruck Keene and Hannah Noyce from 1 Crown Office Row with other barristers from Guildhall Chambers (Brendon Moorhouse) and Garden Court (Irena Sabic and Grace Brown) represented Gwent Wildlife Trust and an umbrella of other environmental objectors in the proceedings which lasted from February 2017 to September 2018. All these barristers acted for free. Environmental NGOs such as the Environmental Law Foundation, should be particularly pleased by Drakeford’s acknowledgement the campaigners’ efforts:
MA, BB v Secretary of State for the Home Department (The Equality and Human Rights Commission intervening)  EWHC 1523 — judgment not yet on Bailii but available here.
The High Court has held that an effective Article 3 investigation by the Prisons and Probation Ombudsman (“PPO”) into allegations of serious physical and mental abuse in an Immigration Removal Centre requires the PPO to have powers are to compel witness attendance, hold hearings in public and ensure that the claimants have properly-funded representation to enable them to review and comment on witness evidence and provide lines of enquiry.
Background: The Panorama exposé
MA and BA were detainees at Brook House Immigration Removal Centre (“the IRC”). Prior to their detention, both had served prison sentences. MA’s asylum claim had been refused and BA’s refugee status had been revoked following his sentencing. Both have mental illnesses.
The IRC is operated for the Home Office by the private company G4S, with healthcare services provided by NHS England and G4S Medical Services.
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.