travel

Does “damage” go wider than injury? Supreme Court on jurisdiction

23 December 2017 by David Hart KC

Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment

Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.

The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.

The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.

On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.

But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.

Let me set the scene for this, before telling you the result.

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Naked rambler gets no help from European Court of Human Rights – Diarmuid Laffan

27 November 2014 by Guest Contributor

Gough v UK (Application no. 49327/11), 28 October 2014 – Read judgment

The applicant in this case has been repeatedly arrested, convicted and imprisoned for breaching the peace by walking around naked in public. In a judgment handed down recently, the European Court of Human Rights found the UK authorities’ restriction of his rights under Articles 10 and 8 of the Convention, proportionate to the legitimate aim of preventing disorder and crime.

Stephen Gough has a strong conviction that there is nothing inherently offensive about the human body, and that he harms no-one by walking around naked. A really, really strong conviction. Since he set off on a naked walk from Land’s End to John O’Groats in 2003, he has been nicknamed the ‘naked rambler’ and has spent most of the last eight years in prison, and most of that time solitary confinement.

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High speed rail, Parliament, and the EU Courts

22 January 2014 by David Hart KC

R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, [2014] UKSC 3 – read judgments

So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.  

The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the  Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.

Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the  Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates.
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HS2 challenges fail but powerful dissent

26 July 2013 by David Hart KC

R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

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Randy, rating, and his (house)boat

18 April 2013 by David Hart KC

Reeves v. Northrop, CA, 17 April 2013, – read judgment

Randy Northrop is a Californian and a wanderer in spirit. He lives with his family aboard MY Cannis – see the pic. He got fed up of “living in a grotty council house in a rough area” of Bristol, so bought and renovated this former Thames tug. And nice inside it sounds too – two open fireplaces, several flat screen TVs, a music room and grand piano.

He spent 8 years moored in Bristol, but the “authorities there aren’t too keen on “live-aboards.”” So he moved on and in 2008 ended up in North Devon moored off Chivenor.

How then did he have the misfortune to stray into one of the backwaters of the law – the law of council tax? Because, after featuring in the local paper, he made a generous offer “as a gesture of good citizenship” to pay some “voluntary” council tax. And instead of the authorities saying “how kind, than you very much” he got a “statement” saying that he was Band A – “fait accompli” as he rightly observed. But a po-faced response which did not indeed endear itself to Randy. Hence this challenge by him to the authorities’ decision.

Sounds a bit dry? Not at all. In the witty and elegant prose of Sir Alan Ward, even rating law is made interesting – and the retired Lord Justice pokes fun at the pompous verbiage you have to wade through to answer the question – do you have to pay council tax on a moored boat?

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HS2 challenges fail, except “unlawful” consultation on compensation

15 March 2013 by David Hart KC

R (o.t.a Buckingham County Council and others) v. Secretary of State for Transport, 15 March 2012, Ouseley J  – read judgment – Updated

In a 259-page judgment, Ouseley J has today rejected all but one of the challenges brought to the Government’s plans for HS2. This is the proposed high speed rail link to Birmingham, and potentially beyond.  The host of challengers (including local authorities, local residents and action groups (under the umbrella of HS2AA), and  – wait for it – Aylesbury Golf Club) brought a host of challenges – 10 in all, of which 9 were unsuccessful. I shall do my best to summarise those of wider interest.

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EU claims for damages because no environmental assessment

15 March 2013 by David Hart KC

Leth v. Austria,  CJEU, 14 March 2013  read judgment

You live very close to an airport. The airport expands without carrying out an Environmental Impact Assessment as required by the EIA Directive.  You want to sue the state for loss in value of your property. Can you claim? This is the strikingly simple question the subject of this judgment of the Court of Justice of the EU. And on the day the HS2 ruling came out (post to follow shortly, but compensation consultation unlawful) it is an interesting question to look at.

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Ryanair’s right under EU Charter to profit from its customers?

1 February 2013 by Rosalind English

Judging people – and a case about a Porsche 917

23 January 2013 by David Hart KC

Piper v. Hales, HHJ Simon Brown QC, 18 January 2013 read judgment

Two types of readers may be interested in this case; the first, who are interested in the age-old judging problem of whom to believe when faced with a conflict of evidence, and the second (and I don’t want to do any gender-stereotyping) those who are fascinated in whether a replica Porsche 917 (think Steve McQueen in Le Mans) over-revved and blew because (a) it had a gearbox fault or (b) the Defendant driver missed a gear.

I will disappoint the second set of readers – but the judgment is short and well-written, so, chaps, read it for yourselves  to find out why the gearbox was acquitted of all charges laid against it.

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High Court refuses to condemn US drone strikes

9 January 2013 by Shaheen Rahman

R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment

In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan.  The Claimant’s father was killed during such an attack in March 2011.

The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law.  The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]

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Human rights victory for BNP bus driver

6 November 2012 by Martin Downs

REDFEARN v. THE UNITED KINGDOM – 47335/06 – HEJUD [2012] ECHR 1878 – read judgment / press release

The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”

This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom

The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.

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Driving disqualification and the limits of EU rights

11 June 2012 by Rosalind English

Vinkov v Nachalnik Administrativno-nakazatelna deynost, Case C-27/11 – read judgment

Buried in the somewhat obscure details of this reference for a preliminary ruling is a hint of how the Court of Justice of the European Union (CJEU) is approaching arguments based on human rights principles as reflected in the Charter of Fundamental Rights of the European Union (‘the Charter’). Put briefly, there has to be a very clear involvement of EU law before a case can be made out under any of its human rights provisions or principles.

The Bulgarian Court of Appeal referred to the CJEU a question for a preliminary ruling arising out of a dispute over penalty points which triggered automatic disqualification from driving under Bulgarian law.
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Battle of the bus lanes: Addison Lee injuncted by High Court

3 May 2012 by Leanne Buckley-Thomson

Transport for London (TfL) v Griffin & Ors [2012] EWHC 1105 (QB) – Read Judgment

Transport for London (TfL) have succeeded in their High Court application for an injunction restraining Addison Lee Taxis from encouraging drivers to use London bus lanes. Mr Justice Eder ruled that the injunction would not breach Addison Lee Chairman John Griffin’s free expression rights.

This case is about traffic regulation orders (TROs) made by TfL dealing with the use of designated bus lanes. TfL’s policy is that private hire vehicles (PHVs – or mini-cabs in ordinary parlance) can only enter bus lanes to pick up or set down whereas taxis can use them as a through-route. The adopted definition of “taxi” means only Hackney Carriages qualify (reg. 4 of the Traffic Signs Regulations and General Directions).  Failure to comply with, or acting in contravention of, TROs is an offence under s8(1) of the Road Traffic Regulation Act 1984.

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Analysis | Court of Appeal upholds hotel gay discrimination ruling – Marina Wheeler

19 February 2012 by Guest Contributor

Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 – Read judgment

On 10^th February 2012, the Court of Appeal upheld a Judge’s ruling that a Christian couple, Peter and Hazelmary Bull, had discriminated against Martin Hall and Steven Preddy on grounds of sexual orientation when they refused them a double-bedded room at their hotel near Penzance.

For many years, Mr and Mrs Bull had restricted the use of double-bedded rooms at the Chymorvah Private Hotel to married couples. As devout Christians they believed that monogamous heterosexual marriage was the form of partnership “uniquely intended for full sexual relations” and that sex outside of marriage – whether heterosexual or homosexual – was sinful.  To permit such couples to share a double-bed would, they believed, be to participate in promoting the sin (single-bedded and twin bedded rooms were available to all).

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Please stow your rights in the overhead compartment

9 February 2012 by Rosalind English

Stott v Thomas Cook Operators and British Airways Plc [2012] EWCA Civ 66 – read judgment

If you need reminding of what it feels like when the candy-floss of human rights is abruptly snatched away, take a flight.  Full body scanners and other security checks are nothing to the array of potential outrages awaiting passengers boarding an aircraft. Air passengers in general surrender their rights at the point of ticket purchase.

The Warsaw Convention casts its long shadow. It was signed between two world wars, at the dawn of commercial aviation, when international agreement had to be secured at all costs. These strong interests survived the negotiation of the 1999 Montreal Convention, now part of EU law as the Montreal Regulation.

Yet so powerful is the desire to travel, and so beleaguered it is now with the threat of spiralling aviation fuel prices and environmental taxes, that we are happier to surrender our freedoms at airports than we are anywhere else – hospitals, doctors’ surgeries, schools, and even on the public highways.

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